Case Law On Criminal Procedure

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HARVARD LAW LIBRARY
Received APR 17 1908

CASE-LAW
ON
CRIMINAL PROCEDURE,
BEING AN ANNOTATION
OF THE
Cnto nf Criminal Ijteirarc,
1898,
WITH
AN INTRODUCTION AND INDEX.
BY
H. C. NIBLETT,
Vakil, High Court, JV- W- P,
Author of "Case-Law on Transfer of Property" and "Case-Law on
Easements and Licenses."
FIRST EDITION.
ALLAHABAD :
H. LIDDELL.—MORXINO POST TRINTINO WORKS.
1898.
[ALL RIGHTS RESERVED.]

/V4
APR 17 1908
In order that my edition of the Code of Criminal Procedure should
be of use to all classes who need to consult, or get acquainted with, the
procedure of our Criminal Courts, I have added an Introduction giving the
history of the codifications of our Procedure law to the present time : the
changes which have been introduced in the present Code from that of the
Code of 1882 : and a summary of the law as now passed in a narrative form,
which gives all the salient points of the law, a perusal of which will in itself
be of great advantage, to those who prepare for judicial examinations, and
to those who are engaged in the investigation and detection of crimes.
The rulings of the Superior Courts of India to the end of 1897 (such
as are now applicable) have been carefully noted under each section ;
cases reported daring January to June have been collected and are
set forth in the " Addenda ; " such portions of other laws which simplify
the work of reference have also been placed in their proper places in the
body of the work. Thus, the work is in itself a complete law of Procedure
now in force in British India. The cases noted are not simply a reference
to the reported cases, but they give at some length the purport of the
ruling, so as to be useful to those who do not possess the reported rulings
or where the rulings are not easily obtainable. If the case refers to more
than one section it has been given under each section. In citing the cases
I have, generally, given only the first names on each side of the parties con
cerned, the rest of the names being left out as of no practicable use. The
method adopted being similar to that of my two works on the civil side of
the law, which has been approved of, it is hoped that this work will also
prove useful.
Allahabad :
H. C. N.
July, 1898.
INTRODUCTION.
The history of the codification of the Procedure Code dates from the year 1817,
when the President in Council instructed the Indian Law Commissioners to prepare
a scheme of pleading and procedure with forms of indictments adapted to the provi
sions of the Penal Code. When this was done, it was further examined by a new
set of Commissioners appointed under Statute 16 and 17 Vic., cap. 95, section 28 ;
and the draft Code so prepared was presented to Parliament in 1856. It was
subsequently, in 1857, introduced into the Legislative Council, and ultimately passed
into law as Act No. XXV of 1861. It was amended by Acts Nos. XXXII of
1861, XV of 1862, VIII of 1866 and VIII of 186X These were again repealed
by Act No. X of 1872, which was amended by Act N >. XI of 1874. At this per-
riod of the codification there were also the High Courts Act No. X of 1875 and the
Presidency Magistrate's Act No. IV of 1877. Thus, there were three Codes in
operation when the Code of 1882 (Act No. X of 1882) was passed into law, which
combined in substance the three Codes and embodied the provisions of Acts Nos.
XXIII of 1810, V of 1861, section 6, parts of sections 24 and 25, the unrepealed
portion of XVIII of 1862, III of I860, XXII of 1870, sections 2 and 4, XXI of
187'J, chapter III, and Bengal Regulation XX of 1825. Since 1882 there have
been passed sixteen ' Acts, all relating to Criminal Procedure and many of them
expressly amending the Code of 1882. In addition to this, several matters were
brought to the notice of the Government of India in regard to necessary amend
ments of the law which were considered at the passing of this Code. The law re
ports also had shown many defects and difficulties in administering the law and
occasionally contradictory interpretations were put by the High Court.
CHANGES MADE BY THE NEW CODE,

I have given my best consideration to work out a method of setting forth pro
minently the changes in the law. The ordinary method of printing the sections
with such portions as have been added in italics and a foot-note showing the omis
sions and other changes, or of giving a note at the end of each section, would not at
a glance show the changes, but rather confuse the matter : to avoid this I have
chosen to give the changes in a tabular statement.
TABULAR STATEMENT.
Section ot Correspond
Act V of Addition, omission or other changes made in the new Code. ins section
1808. of Act X
of 188i.
14 The latter portion of paragraph (2) as to the term of appoint
ment is new 14
17 The powers to give special orders in paragraphs (2) and (4)
are new 17
♦ Acts Nos. HI of 1882, X of 1886, Vof 1887, XIV of 1887, I of T89, V of 18 59. XIII of
1889, III of 1891, IV of lm, Xof 1891, XII of 1891, HI of 1891, X of 18J1, IV ol 1895, V of
1896 and XIII cf 1896.
A
-■
/
Introduction.
Section of [Correspond
Addition, omission or other changes made in the new Code. ing section
Act V of of Act X
1888. of 188S.
18 Paragraph (1) of this section corresponds with the first clause

of section 18 of the Code of 1882, paragraph (2) is new ...
19 This section corresponds with the second paragraph of section
18 of the Code of 1882
21 Clause (e) giving the Chief Presidency Magistrate powers of
control over other Presidency Magistrates ...
28 The illustrations are new
29 This section is a little different from section 29 of the Code of
1882, the provision to that section has been omitted
80 This section has been amended. The authority to invest Ma
gistrates of the first-class is new
81 Under section 31 of the Code of 1882, any sentence of impri
sonment exceeding 4 years and any sentence of transporta
tion passed by an Assistant Sessions Judge was subject to
confirmation ; this is omitted ...
34 Under section 34 of the Code of 1882, sentence of imprison
ment exceeding 4 years and sentence of transportation
was subject to confirmation ; this is omitted
85 This section corresponds with section 35 of the Code of
1882. Power, however, is given to pass concurrent
sentences
41 Paragraph (2) is new ...
42 The words " preventing the escape " are new. The other por
tion is, in somewhat altered language, section 42 of the
Code of 1882
106 Paragraph (3) is new. The words " by threatening injury
to person or property " which occurred after the words
"criminal intimidation" in the Code of 1882 have been
omitted
107 Paragraph (1) of the section has been substituted for section
Paragraph (2) is new.
Paragraphs (3) and (4) have been substituted for section
108 This section is new.
109 The period of six mouths under the Code of 1882 has been
raised to one year
110 This section is more complete than section 110 of the Code of
1882, clauses (c) and e) are new
112 This section is new, made applicable to Magistrates acting
under section 108
117 Paragraph (4) is new. The amendment now enables a Ma
gistrate in one proceeding to deal with two or more persons
in one matter which is under enquiry relating to security
for good behaviour or to keep the peace 117
Introduction. iii
Correspond
Addition, omission or other changes made in tlio new Code. ing section
of Aot X
of ISM.
The words " unless the Magistrate, for sufficient reason, fixes
a later date" in paragraph (2) is new
The words " for good behaviour" in section 122 of the Code
of 1882 hare been omitted
Section 128 of the Code of 1882 has been redrafted and mo
dified
The words " or information " in paragraph (1) are new
Under the Code of 1882, section 174 applied only to " every
officer in charge of a police-station." This section applies
to an officer in charge of a police-station or a police-officer
specially empowered by the Local Government
In paragraph (3) the words "or other qualified medical man"
have been substituted for " or other medical officer."
In paragraph (2) the words "or retained" have been inserted
This is section 191 of the Code of 1882
This with some modification corresponds with the last para
graph of section 191 of the Code of 1882 ...
Paragraphs (2) and (3) are new ...
Offences under sections 108A, 153A and 505 of the Penal
Code have been added to the list of offences
This section is now made subject to the provisions of section
476
Section 201 of the Code of 1882 dealt only with a complaint
in writing : paragraph (2) now provides for the case of a
verbal complaint ...
The words " is not satisfied as to the truth of a complaint"
have been substituted for "sees reason to distrust the truth
of a complaint"
The last sentence of this section is new
The words in brackets and paragraph (8) are new
The words in brackets and the provision requiring the Magis
trate to record his reasons are new
The words " is satisfied " have been substituted for
"finds" ...
Paragraph (2) is new ...
The inclusion in this section of commitments by a Sessions
Court or by a Civil or Revenue Court is new 215
The words " and all other proper expenses " are new 216
Paragraph (2) is new and is a most important addition
The words " in fact " have been inserted and the last sentence
added ... ••• ••• 225
The illustrations are new 226
The words " or add to " or " or addition " have been
added ... 227
iv Introduction.
Addition, omission or other changes made in the new Code.
The last sentence of thi.s section " and also to call any further
witness whom the Court may th'nk to be material " have
been added
Illustration (b) is new
The words " a charge containing more heads than one is
framed " have been substituted for " more charges than one
are made "
The proviso is new
This is section 560 of the Code of 1882
This section has been altered by the insertion of a proviso per
mitting the Magistrate to frame a charge at any time pre
vious to the taking of the evidence for the prosecution and
the examination of the accused ...
Very important alterations have been made in this section ...
If the accused does not plead guilty, &c., and claims to be
tried and if he desires to cross-examine the witnesses for
the prosecution or any of them who have been examined,
such will be recalled and cross-examined, after which
they are to be discharged, and the remaining witness for
the prosecution will be then examined and discharged ...
Very important alterations have been made in this section...
The Magistrate is bound to issue process for the attendance
of witnesses unless, for reasons to be recorded, he considers
that the application is made for vexation or delay, or de
feating the ends of justice, &c.
Clauses (c) and (in) and the latter part of clause (2 , of sub
section is new
Paragraphs (3) and (4) are new
The words " and in Chapter XVIII " have been added
This section has been remodelled substantially in the form of
the corresponding section of the Code of 1872
This section corresponds with the first part of section 810 of
the Code of 1882 ...
This section corresponds with the last paragraph of section
The words " for a term not exceeding six months " and the
proviso are new
Paragraphs (6) and (7) were section 325 of the Code of
1882 ...
This was section 325A of the Code of 1882
Paragraph (2) was section 330A of the Code of 1882
Paragraph (3) is new
The words " if he thinks fit " have been added to this
section
Introduction v
[Correspond
Addition, omission or other changes made in the new Code. ing section
of Act X
of 1883.
The offence of voluntarily causing grievous hurt punishable

under section 325 of the Penal Code hns been added
Paragraph (7) has been slightly altered.
This section has been recast
A verbal alteration has been made ...
The inclusion of proceedings under section 514 and of offences
under sections 451, 456, 457 of the Penal Code, and
offence under section 20 of the Cattle-Trespass Act is new,
This section has been recast and modified
The inclusion of section 484 is new
This section is new.
Clause («) of section 408 of the Code of 1882 (now clause (b)
of this section) has been recast ...
The inclusion in this section of the words " or Magistrate of
the first-class " is new
This section has been altered so as to make it apply also to a
person called to produce a document or thing
The reference to the Presidency Magistrate in section 487 of
the Code of 1882 has been omitted
Paragraph (2) has been altered so that maintenance may be
allowed from the date of the application, if so ordered ...
Paragraph (2) has been substituted for the second paragraph
of section 508 of the Code of 1882
This section has been altered so as to include depositions of
medical witnesses taken on commission under Chapter XL
admissible
Paragraph (6) and the words "or his estate if he be dead "
in paragraph (2) are new
The operation of this section has been enlarged so as to allow a
Magistrate to pass order for the disposal of the property
produced
The words " and make any further orders that may be just "
have been added
The words " the disposal of such property or " is new
The words " or is required by any provision of this Code " in
paragraph (1) (c) and also paragraph (3) are new
VI Introduction.
Correspond -
Addition, omission or other .changes nmde in the new Code. ins section
of Act X
of 1882.
Paragraph (8) is section 426A of the Code of 1882 added by

Act III of 1884 ...
The words " has in fact" are new ...
The words " if it thinks fit " have been inserted
This was section 550 of the Code of 1882
General Sugary of the Jêw Code of Criminal procedure.
The present Code is divided into 9 Parts : the first contains the usual prelimi
nary matter; the second deals with the constitution and powers of the Criminal
Courts and offices ; the third contains general provisions ; the fourth treats of the
prevention of offences ; the fifth, of information to the police and of their powers
to investigate ; the sixth, of proceedings on prosecutions; the seventh, of appeal,
reference, and revision ; the eighth, of special proceedings ; the ninth, of supple
mentary provisions, -of first offenders and previously convicted offenders.
I.—PRELIMINARY.
PART I consists of a single chapter with 5 sections.
It gives the title, commencement and local extent of the Act. It states what
enactments are repealed, how the notifications, &c, under repealed Acts are to be
construed, and how the references to the repealed Acts are to be understood. It
contains the interpretation-clause and gives the procedure under which offences
under the Penal Code and other laws are to be enquired into and tried.
Introduction.
II.-CRIMINAL COURTS.
PART II deals with the constitution and powers of Criminal
Courts and offices ; it consists of 2 chapters with 36 sections.
CHAPTER II treats of the constitution of Criminal Courts and
offices, ; it consists of 22 sections. Besides the High Courts and Courts con
stituted under special laws, it directs the constitution of the following other Courts,
viz., those of (1) Session, (2) Presidency Magistrates, (8) Magistrates of the
first-class, (-4) Magistrates of the second-class, (5) Magistrates of the third-class.
The territorial divisions for Courts of Session may consist of a district or
districts, a Presidency town being deemed a district ; the Local Government may
divide any district into sub-divisions ; all existing sub -divisions are deemed to
have been made under this Code (sections 7 and 8).
The Local Government is directed to establish a Court of Session for every
Sessions Division and to appoint a Judge thereto, also (if necessary) Additional
and Assistant Judges to exercise jurisdiction in one or more of such Courts. AH
existing Courts of Session are deemed to have been established under this Code
(section 9).
The Local Government is directed to appoint a Magistrate of the first-clas*
as a District Magistrate, and it may, from time to time, appoint an Additional Dis
trict Magistrate -officers temporarily succeeding to vacancies in the office of
District Magistrate exercise and perform all the duties of the office (sections 9 11).
The Local Government or District Magistrate may define local areas within
which subordinate Magistrates may exercise all or any of the powers under this
Code, but their ordinary jurisdiction and powers extend throughout the district
(section 12).
Any Magistrate of the first or second class, placed in charge of a sub-divi
sion by the Local Government, is called a Sub-Divisional Magistrate ; the Local
Government may delegate this power to the District Magistrate (section 13).
The Local Government may appoint special Magistrates in any local area
outside the Presidency-towns, but no such power can be conferred on any police-
officer below the grade of Assistant District Superintendent, and that only if ne
cessary for preserving the peace, preventing and detecting crime, apprehending and
detaining offenders (section 14).
The Local Government may direct any two or more Magistrates, outside Pre
sidency-towns, to sit together as a Bench, and such Bench of Magistrates may
exercise the highest class of powers which may have been conferred on any of
its members. The Local Government or, with its sanction, the District Magis
trate may make rules for the guidance of Magistrates' Benches not inconsis
tent with this Code (section 16).
All Magistrates and Benches of Magistrates shall be subordinate to the
District Magistrate, who may, from time to time, make rules or give special
orders consistent with this Code. Every Magistrate and every Bench exercising
powers in a sub-division will also be subordinate to the Sub-Divisional Magistrate,
subject to the general control of the District Magistrate. All Assistant Sessions
Judges will be subordinate to the Sessions Court ; but neither the District Magis
trate nor the subordinate Magistrate and Benches will be subordinate to the
Sessions Judge, except in the manner hereafter described (section 17).
viii Introduction.
The appointment and local limits of the jurisdiction of Presidency-Magis

trates with their powers and duties are given in sections 18 to 21.
The Governor-General in Council and every Local Government may, by noti
fication in the Government Gazette, appoint Justices of the Peace. Persons
now acting as Justices of the Peace will be deemed to have been appointed under
this Code.
The Governor-General, the Ordinary Members of Council of the Governor-
General, the Judges of the High Courts, the Recorder of Rangoon, are Justices
of the Peace within and for the whole of India ; Sessions Judges and District
Magistrates are Justices of the Peace for the territories of the Local Government ;
Presidency Magistrates are Justices of the Peace within and for the town they
are Magistrates of (section 25).
All Judges of Criminal Courts, other than of the High Courts established by
Royal Charter, and all Magistrates may be suspended or removed from office by the
Local Government. The Governor-General may stipend or remove from office any
Justice of the Peace appointed by him, and the Local Governments any appointed
by them (section 27).
CHAPTER III treats of the powers of Courts and consists of 14 sec
tions. It directs that all offences under the Penal Code will be tried by Courts con
stituted by this Code, and offences under other laws by Courts mentioned in that
law ; when no special mention is made, offences will be tried by the Court < constitu
ted under this Code. Magistrates of the first-class are not empowered to try an
offence which is punishable with imprisonment exceeding seven years ; Magistrates
of the second-class, an offence punishable with imprisonment exceeding three years ;
and Magistrates of third-class, exceeding one year (sections 28 and 29.)
In provinces where there are Deputy Commissioners and Assistant Commis
sioner, the Local Government may invest the District Magistrates to try as
Magistrates all offences not punishable with death (secti m 80).
The High Courts may pass any sentence authorised by law ; a Sessions Judge
or Additional Sessions Judge, any sentence authorised by law, but a sentence of
death will be subject to confirmation by the High Court ; an Assistant Sessions
Judge, all sentences except a sentence of death or transportation for seven years, or
imprisonment exceeding seven years. The sentences which Magistrates may pass
are as follows :—Presidency Magistrates and Magistrates of the first-class, impri
sonment not exceeding two years with such solitary confinement as is authorised by
law, fine to a thousand rupees, and whipping ; Magistrates of the second-class, impri
sonment not exceeding six months with such solitary confinement as is authorised
by law, fine not exceeding two hundred rupees, and, if specially empowered by the
Government, whipping ; Magistrates of the third-class, imprisonment not exceed
ing one month and fine not exceeding fifty rupees. The Court of any Magistrate
may pass any lawful sentence combining any of the sentences authorised (sections 81
and 82). Magistrates may award in default of fine such imprisonment as is autho
rised by law, but the term shall not be in excess of the Magistrate's powers, and
where substantive sentence of imprisonment has been awarded, the period of impri
sonment in default of fine cannot exceed one-fourth of the substantive imprisonment
which the Magistrate is competent to inflict (section 38). The District Magistrate
may be especially empowered with higher power, but a sentence of death or of
transportation exceeding seven years, or imprisonment exceeding seven years, can
not be passed by him (section 84).
Introduction. ix
In passing sentence in case of conviction for several offences, the Court may
sentence the accused to the several punishments prescribed therefor, such punish
ments to commence one after the expiration of the other, but cannot, by reason of
being in excess of the punishment the Court is competent to inflict for a single
offence, commit the offender to a higher Court : Provided that in no case a
sentence of more than fourteen years is passed, or, in a case tried by a Magistrate,
the aggregate punishment does not exceed double the punishment which the
Magistrate in exercise of his ordinary jurisdiction is competent to inflict. For
the purposes of confirmation or appeal, the aggregate sentences passed at one trial
will be deemed a single sentence (section 35).
The powers specified in the 3rd schedule are " ordinary powers " (section 36) ;
in addition thereto a subordinate Magistrate may be granted by the Local Govern
ment or by the District Magistrate, if authorised by the Government, any powers
specified in the 4th schedule (section 37). The powers so conferred on the District
Magistrate is to be exercised subject to the control of the Local Government
(section 38). The Local Government may confer such power by individual name
or in virtue of the office, or to classes of officials generally by their official title.
III.—GENERAL PROVISIONS.
PART III deals with General Provisions and consists of 4 chapters
with 64 section.
CHAPTER IV treats of aid and infinration to the Magistrate,
the police and persons making arrests, and consists of 4 sections. It declares
that every one is bound to assist a Magistrate or police-officer in the following
cases : arresting any person whom such Magistrate or police-officer is authorised to
arrest ; in the prevention of a breach of the peace or of any injury attempted to
any railway, canal, telegraph or public property ; in the suppression of a riot or
an affray, or dispersion of an unlawful assembly, or an assembly of five or more
persons likely to cause a disturbance of the public peace (section 42). When a
warrant is directed to other than a police-officer, any other person may aid in its
execution (section 48).
Every person aware of the commission of, or the intention of any other
person to commit the following offences, is directed to forthwith give information to
the nearest Magistrate or police-officer of such commission or intention (section
44) :_
Section 121. —Waving or attempting or abet Section 145.— Joining or continuing an unlaw
ting t lie waging of war against ful assembly, knowing it has
the Queen. been command ;d to disperse.
„ 121A.—Conspiracy to the waginj of
war. , 146. — Force used by one member in
„ 125. —Waging war agiinst Asiatic prosecution of common object.
power in alliance with the „ 148.—Rioting armed with deadly wea
Qucn. pons.
,, 1?6. —Committing depredation in terri „ 302.—Murder.
tories of power at peace with „ 303.—Murder by convict under trans
the Queen. portation for life.
„ 130. —Aiding escape of, rescuing or , 304.—Culpable homicide.
harbouiiog such prisoner. „ 382.—Theft after preparation made
„ 134.—Being a member of an uulawful for causing death, etc.
assembly armed with deadly ,, 392.—Robbery.
weapons. ,, 393.—Attempt to commit robbery.
X Introduction.
Section 394.—Causing hurt in committing rob mitting dacoity.
bery.
„ 395.— Dacoity. Section 435. —Mischief by fire, Jcc.
„ 396.— Dacoity wiih murder. „ 436.—Mischief by fire, Jcc.
„ 397.— Robbery or dacoity with attempt „ 499. —Houses trespass.
to cause death. „ 450.— House-trespass, Sc.
„ 398. —Attempt to can't robbery or „ 456. — Lurking house-trespass, kc
dacoity armed with deadly wea „ 457—Lurking house-trespass, &c.
pons. ,, 458 Lurking house-trespass, kc.
399.—Making preparation to commit „ 459.—Grievous hurt whilst committing
dacoity. lurking house-trespass.
„ 402.—Assembling for purpose of com „ 460. —House-breaking, &c.
Every village headman, accountant, watchman, police-officer, owner or occupier
of land, and the agent of any such owner or occupier, and every officer employed
in the collection of revenue or rent of land on the part of Government or the Court
of Ward, is directed to forthwith communicate to the nearest Magistrate or the
nearest poliee-officer, whichever is the nearer, information which he may obtain
respecting the permanent or temporary residence of any notorious receiver or vendor
of stolen property, the resort to any place within, or passage through, or whom he
reasonably suspects, to be a thug, robber, e caped convict or proclaimed offender ;
the commission of or intention to commit any non-bailable offence or any offence
under sections 143, 144, 145, 147, or 148 of the Penal Code (unlawful assembly,
or riot) ; or any sudden or unnatural death or any death under suspicious circumstan
ces ; any matter likely to affect the maintenance of order or the prevention of crime
or the safety of person or property ; the commission of or intention to commit out
of British India any act which, if committed in British India, would be an offence
punishable under the following sections of the Penal Code : -
Section 302.- Murder. robbery armed with deadly
„ 304. —Culpable homicide. weapons.
„ 382. —Theft after preparation of com Section 399.—Making preparation to commit
mitting d ath, &c. dacoity.
„ 392—Robbery. „ 402.— Assembling for commiting da
„ 393.- Robbery. coity.
„ 394.—Attempt to commit robbery „ 435.—Mischief with fire, kc.
, 395.— Dacoity. „ 436. —Mischief with fire, &c.
„ 396.—Dacoity with murder. „ 449, 450.— House-trespass, kc.
„ 397. —Dacoity or robbery with at- ,, 457, 458.—House-trtspass, kc.
tempt to cause death. „ 459.—Grievous hurt, kc.
„ 39?.—Attempt to commit dacoity or „ 460.— House-trespass.
The Magistrate will from time to time appoint one or more persons to be the
village-headman for the purpose above stated (section 45 \
CHAPTER V treats of arrest, escape and re-taking, and consists of
22 sections. It gives directions as to arrest generally and of arrest without warrant.
Arrest is to be made by actually touching or confining the body of the person to be
arrested ; if such person forcibly resists the endeavour to arrest, or attempts to
evade the arrest, the police-officer may use all necessary means, but this does not
give a right to cause the death of the person : the police-officer may enter any
house or enclosure, and if egress cannot be obtained, may break open any outer or
inner door or window of the house or place, but if any such place is an apartment
in the actual occupancy of a woman who does not appear in public, the police-officer
must give notice to the woman that she is at liberty to withdraw, and give her
reasonable facility for so doing before opening the apartment to enter. Whenever
8 woman is to be searched, the search is to be made by another woman with strict
Introduction. xi
regard to decency. The officer making the search has power to seize all offensive
weapons which the person arrested may hare about his person (sections 46 —53).
A police-officer may, without a warrant, arrest any person concerned in any
cognizable offence, or against whom a reasonable complaint has been made, or cre
dible information has been received, or a reasonable suspicion exists ; any person
having in his possession any implement of house-breaking ; any person who is a
proclaimed offender ; any person in whose possession anything is found which raises
reasonable suspicion to be stolen property ; any person who obstructs bim in the
execution of his office, or who has escaped, or attempts to escape from custody ;
any person reasonably suspected of being a deserter from the Army or Indian Marine
Service, or who has been concerned in any act committed out of British India, which,
if committed in British India, would be punishable as an offence for which he is
under law liable to be apprehended or detained in British India ; any person com
mitting a breach of the terras of police supervision. The Local Government may
direct the above provisions to apply to village police-men or chowkidars (section 54).
The officer in charge of a police-station may arrest or cause to be arrested by
any subordinate officer, to whom he has delivered an order in writing specifying
the person to be arrested and the offence for which the arrest is to be made, any
person who is taking precautions to conceal his presence for the purpose of com
mitting a cognizable offence ; any person who has no ostensible means of subsistence,
or who cannot give a satisfactory account of himself ; any person who is by repute a
habitual robber, house-breaker or thief, habitual receiver of stolen property, or who
by repute habitually commits extortion, or for such purposes puts or attempts to
put another in fear of injury (sections 55 and 56).
A police-officer may arrest any person who has committed or is accused of hav
ing committed a non-cognizable offence, if on demand to give his name and address
he refuses to do so, or who gives a name and address which such officer has reason
to believe to be false, in order that his name and residence may be ascertained ;
when it has been ascertained, he is to be released on executing a bond with proper
sureties to appear before a Magistrate ; if his name and residence is not ascertained
or he fails to furnish security within 24 hours, he is to be forwarded to the Magis
trate having jurisdiction (section 57).
A police-officer may pursue a person he is authorised to arrest to any place in
British India in order to arrest him. Any private person may arrest any person
who, in his view, commits a non-bailable and cognizable offence, or is a proclaimed
offender : the procedure is set out in sections 58 and 59.
A person arrested without a warrant cannot be detained for more than 24 hours.
This limit only applies to a police-officer enrolled under Act No. V of 1861. The
officer in charge of a police-station shall report such arrests to the Magistrate, and
no person arrested can be discharged except on his bond, or bail, or under the
special order of a Magistrate (sections 60— 68).
A Magistrate within whose local jurisdiction and in whose presence an offence
is committed, may himself arrest or order the arrest of the offender ; he also may at
any time in his presence order the arrest of any person for whose arrest he is com
petent to issue a warrant (sections 64 and 65).
On escape from lawful custody, the person from whose custody the escape is
effected may pursue and arrest such person in any place in British India, although
xii Introduction.
he may not have in himself the authority to arrest and is not acting under a war
rant (sections 66 and 67).
CHAPTER VI treats of processes to compel appearance and con
sists of 26 sections. It gives the form of summons. Summons are to be served by
a police-officer and to be made by delivery of a copy, the person served is to sign a
receipt therefor. Service on incorporated company or other body corporate is to be
made on its secretary, local manager, or other principal officer, or by registered post
letter to the chief officer of the corporation in British India (sections 68 and 69).
If service cannot be personally made it will be effected by leaving a duplicate with
some male member of the family ; in presidency-towns with the resident servant
(section 70). When the service cannot be effected the serving officer is to affix a
duplicate on some conspicuous part of the house (section 71). Service on servants
of Government or the railway company is to be effected by delivery of the summons
to the head of the office (section 72), and service on persons residing outside the
Magistrate's jurisdiction is to be forwarded in duplicate to the Magistrate having
jurisdiction (section 73).
A warrant of arrest is to be signed by the presiding officer or a member of a
Bench of Magistrates and is to bear the seal of the Court. It will remain in force
until cancelled by the Court issuing it (section 75). A warrant may contain
directions for the taking of a bond with sufficient security (section 76). Warrants
will ordinarily be directed to police-officers, but the Magistrate has a discretion to
direct it to any other person (section 77). A warrant may be directed to land
holders, farmers or managers of land ; when the person is arrested, he will be made
over to the nearest police-officer, who will cause him to be taken before a Magistrate
(section 78). A warrant directed to a police-officer may be executed by any other
police-officer whose name is endorsed upon the warrant (section 79).
The substance of the warrant is to be notified to the person to be arrested
and, if he requires, it will be shown to him (section 80). A warrant can be exe
cuted at any place in British India (section 82). A warrant for execution outside
the local limits of the Court may be forwarded by post to any Magistrate, or Com
missioner, or District Superintendent of Police, who, by endorsing his name there
on, will cause it to be executed (section 83). When it is directed to a police-
officer, it will ordinarily be taken for endorsement to a Magistrate or police-officer
having jurisdiction ; but when the delay is likely to prevent its execution, it may
be executed without such endorsement (section 84). When the person is arrested,
if the Court which issued the warrant is not within 20 miles, he will be taken to
the nearest Magistrate, or Commissioner, or District Superintendent of Police
(section 85) ; and if the offence is bailable, he may be released after executing a
bond and giving security, the warrant being forwarded to the Court which issued
it ; or the person arrested may be taken in custody to such Court (section 86).
When a person against whom a warrant of arrest is issued has absconded or

is concealing himself, the Court may publish a proclamation requiring his appear
ance within a period not less than thirty days from the date thereof ; the procla
mation will be publicly read in some conspicuous place where the person ordinarily
resides, and it will be affixed to some conspicuous part of his house or of the town
or village, a copy bcing^ffixed in the Court-house, and a record will be made by the
Court that the proclamation was so published, which will be evidence of such fact
(section 87).
Introduction. xiii
The Court may after the proclamation order the attachment of the move
able and immoveable property of the person, whether within or without such
district ; if such property be debts or other moveable property, the attachment
will be made by seizure, by appointment of a«reeeiver, or by order prohibiting
the delivery of such property to the proclaimed person, or by all or any two of
such methods ; if the property to be attached be land paying revenue to Gov-
erment it will be attached through the Collector ; other immoveable properties
will be attached by taking possession, or by appointment of a receiver, or by order
prohibiting the payment of rent or delivery of the property, or by all or any two
of such methods ; if the property consists of live-stock, or is of a perishable
nature, the Court may order immediate sale, the proceed will abide the order of the
Court.
If the proclaimed person does not appear within the time specified, the proper
ty will be at the disposal of the Government, but will not be sold for six months,
unless it is subject to a speedy or natural decay.
If a third person makes a claim to the property the Court may investigate and
determine the possession.
If the person whose property has been attached appear voluntarily and satisfy
the Court that he did not abscond or conceal himself for avoiding the warrant and
had not sufficient notiee of the proclamation, such property and the nctt proceeds
of such portion as has been sold will be delivered to him (sections 88 and 89).
The Court when empowered to issue a summons may, after recording its
reasons, issue a warrant : (i) either before or after the issue of summons, when
it sees reason to believe the person has absconded or will not appear ; (ii) when
at the time fixed for appearance, the person so fails to appear and no reasonable
excuse is offered (section 90). If the person is present in Court he may be re
quired to execute a bond with or without sureties for his appearance (section 91).
When a person bound by a bond to appear fails to do so, the Court may issue
a warrant for his arrest (section 92).
The above provision applies to all cases of sumuuns or warrants of arrest under
the Code (section 98).
CHAPTER VII treats of processes to compel the production of
documents and other moveable property, and for the discovery of per
sons wrongfully confined, and consists of 12 sections. When a Court or an
officer in charge of a police-station beyond the limits of the towns of Calcutta and
Bombay considers the production of any document or other thing to be necessary or
desirable for any investigation, enquiry, trial or other proceedings, the Court may
issue summons or police-officer a written order for its production ; it is not neces
sary for the person ordered to produce to appear personally, he may cause such docu
ment or thing to be produced (section 94). If such document, parcel or thing is
in the custody of the Postal or Telegraph authorities the District Magistrate, Chief
Presidency Magistrate, High Court or Court of Session may require the delivery of
such document, parcel or thing; but when a search is being made for the discovery of
such document, parcel or thing any Magistrate or Commissioner of Police or Dis
trict Superintendent of Police may require the Postal or Telegraph Department to
cause search to be made, and to detain the document pending the order of the Dis
trict Magistrate, Presidency Magistrate or Court (section 95).
xiv Introduction.
A search warrant can be issued when the Court has reason to believe that the
person to whom a summons has been issued, or an order or requisition has been ad
dressed, will not or would not produce the document or other thing ; or when such
document or other thing is not known to be in the possession of any person ; or that
the purpose of any enquiry, trial or other proceedings will be served by a general
search or inspection : but only a District Magistrate or Chief Presidency Magistrate
can grant a warrant for the search of a document, parcel or other thing in the cus
tody of the Postal or Telegraph authority (section 96).
For the search of a place which a District Magistrate, Sub-Divisional Magistrate,

Presidency Magistrate or Magistrate of the first-class, upon information and after
enquiry, has reason to believe is used for the deposit or sale of stolen property ; or
for the deposit or sale or manufacture of forged documents, false seals or counterfeit
stamps or coin, or instruments or material for counterfeiting coin or stamp or for
forging ; or that any forged document, false seal, or counterfeit stamps or coin, or
instruments or material used for counterfeiting coin or stamp or for forgery are kept
or deposited,—he may by his warrant authorise any police-officer above the rank
of a constable to enter such place and to search the same and take possession of any
property, document, seals, &c, and to convey the same before a Magistrate ; to
take into costody and carry before a Magistrate every person found in such place
who appears to have been privy to the deposit, sale or manufacture, &c.
The above provisions, so far as they can be made applicable, apply to pieces of
metal made in contravention of the Metal Tokens Act, 1891, or brought in India
in contravention of any notification under section 19 of the Sea Customs Act, 1878,
or suspected to have been so made or brought in British India ; or instruments or
materials for making pieces of metal in contravention of the said Act (section 98).
Such things when found are to be taken to the Court which issued the warrant,
unless the place is nearer to the Magistrate having jurisdiction (section 99).
For a person who is confined under circumstances that it amounts to an offence,
a Presidency Magistrate, Magistrate of the first-class, or Sub-Divisional Magis
trate may issue a search warrant; the person, if found, shall be immediately taken
before a Magistrate, who shall make such order as seems proper (section 100).
The procedure laid down in Chapter IV, section 43, and Chapter VI, sections
75, 77, 79, 82, 83, aud 84 will apply to all search-warrants (section 101).
When any place is liable to be searched or inspected, and it is closed, the person
residing in, or in charge of such place must on demand allow free ingress thereto ;
if ingress cannot be obtained, the police-officer executing the warrant can break
open any outer or inner door or window ; and if any person about the place is
reasonably suspected of concealing about his person any article for which search
ought to be made, the person may be searched in the manner provided in sec
tions 51 and 52 (section 102).
Search is to be made in the presence of one or two witnesses, and the occu
pant or some person on his behalf will be allowed to attend (section 103 .
A Court may impound any document or thing produced before it (section 101).
A Magistrate may direct search in his presence (section 105).
Introduction. XV
IV.- PREVENTION OF OFFENCES.

PART IV deals with the prevention of offences and consists of 6
chapters with 48 sections.
CHAPTER VIII treats of security for keeping the peace and for
good behaviour and consists of 21 sections. When a person is convicted before
a High Court, a Court of Session, or the Court of a Presidency Magistrate, a Dis
trict Magistrate, or Sub-Divisonal Magistrate, or Magistrate of the first class, —of
rioting, assault or breach of the peace, or of abetting it, or of assembling armed men,
or of taking other unlawful measures, or is accused of committing criminal in
timidation, and such Court is of opinion that such person should execute a bond for
keeping the peace, it will at the time of passing the sentence order the accused
to execute a bond in a sum proportionate to his means for a term not exceeding 3
years : if the conviction is set aside the bond will become void. The Appellate
Court and the High Court, when exercising the power of revision, may pass order
under this section (section 106).
When a Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate,
or Magistrate of the first-class receives information that a person is likely to com
mit a breach of the peace, or is likely to disturb public tranquillity, or to do any
wrongful act, the Magistrate may require such person to show cause why he may
not be ordered to execute a bond with or without sureties to keep the peace for a
term not exceeding one year, But where a Magistrate, who is not empowered to
act, has reason to believe that any person is likely to commit a breach of the peace,
or disturb the public tranquillity, oi do any wrongFul act, such Magistrate or Court
may, after recording his reason, issue a warrant for the arrest of such person, if not
already in custody, and will send him before a Magistrate who is empowered to act :
such Magistrate will detain the person until completion of the enquiry (sections
107 and 108). Note.—Sections 107 and 108 of the Code of 1882 hat), been consi
derably modified.
Security for good behaviour for a period not exceeding twelve months, after
notice to show cause, may be demanded from a person taking precautions to conceal
his presence with a view to committing any cognizable offence, or who has no
ostensible means of subsistence, or cannot give a satisfactory account of himself
(section 109).
Security for good behaviour for a period not exceeding three years, after notice
to show cause, may be demanded from a person who is by habit a robber, house
breaker or thief, or is by habit a receiver of stolen property, or habitually protects or
harbours thieves, or habitually commits mischief or extortion, or attempts to do so,
or in order to commit extortion habitually puts, or attempts to put, persons in fear
of injury, or is a character so desperate and dangerous as to render his being at
large without security hazardous to the community (section 110).
The above provisions do not apply to European British subjects ; they can be
dealt with under the European Vagrancy Act No. IX of 1874 (section 111).
The order calling on to show cause why security may not be taken will set
out the substance of the information received, the amount of the bond to be exe
cuted and the term for which it is to be in force, with the character and class of
securities required (section 112); if the person in respect of whom the order is
made is present in Court, the order will be read out to him and the substance ex
plained (section 113) ; if the person is not present, a summons will issue requiring
xvi Introduction.
him to appear and, if he is in custody, a warrant for him to be brought up : if it

appears from the information or report of the police-officer that there is fear of
a breach of the peace which cannot be prevented otherwise than by the immediate
arrest of the person, the Magistrate may issue a warrant for his arrest (section 114).
The summons or warrant will be accompanied by a copy of the order (section 115).
When a person who is thus accused is present in Court or has been brought before
the Court, the Magistrate will proceed to enquire into the truth of the information
and take further evidence, if necessary ; such enquiry will be conducted in the
manner prescribed for conducting trial and of recording evidence in warrant-cases,
but a charge of being a habitual offender may be proved by evidence of general
repute or otherwise. When two or more persons have been associated together they
may be dealt with in the same or separate enquiries as the Magistrate thinks fit
(section 117).
When a Magistrate orders security to be taken either for keeping the peace
or for good behaviour, the order for such security will not be of a different nature
from, or of an amount larger than, or for a period longer than that specified in the
order under section 112; the amount of the bond will be fixed with due regard to the
circumstances of the case and will not be excessive : when a person required to give
security is a minor, the bond will be executed only by his sureties (section 118).
If the person against whom an order for security is made is already undergoing
a sentence of imprisonment, the period for which the security is required will com
mence after the expiration of such sentence ; in other cases it will commence on the
day of the order (section 120;.
The Magistrate may refuse to accept the security offered for reasons to be re
corded (section 122) ; and if the person fails to furnish the security on or before the
day when such security is to commence, he will be committed to prison, to be de
tained there until either the period expires, or until within such period he gives the
security: if the security is given to the officer in charge of the jail, it will be referred
to the Court or Magistrate who made the order. When security is demanded for a
period exceeding one year, and the person does not give the required security, he
will be detained pending the orders of the Court of Session, or if the order is made
by a Presidency Magistrate, that of the High Court; such Court may pass orders in
the case as it thinks fit.
The imprisonment on failure of giving security for keeping the peace will be
simple; that for good behaviour, either rigorous or simple as the Court or Magistrate
in each case directs (section 123).
The District Magistrate or Chief Presidency Magistrate may, in cases in which
security has been ordered by them or their subordinate Magistrates, for failure of
which a person has been imprisoned, reduce the amount of the security or the num
ber of sureties, and in cases where the security was ordered by the Court of Session
or High Court, report to that Court, and such Court may, if it thinks fit, order
such person to be discharged (section 124'.
The District Magistrate may, for reasons to be recorded in writing, cancel any
bond for keeping the peace or for good behaviour, or an order for police supervision
passed by any Court subordinate to him (section 125).
A surety may at any time apply to have his bond cancelled, on which the Ma
gistrate will demand from the accused a fresh surety for the unexpired portion, and,
on failure, will order the accused to be imprisoned section 126).
introduction. xvii
CHAPTER IX treats of unlawful assemblies and consists of 6 sections.

A Magistrate or an officer in charge of a police-station may command an unlawful
assembly or an assembly of five or more persons likely to cause a disturbance of the
public peace to disperse (section 127); and on such assembly not dispersing the Ma
gistrate or police-officer may proceed to disperse it by force, and may require the
assistance of any male person, not being an officer or soldier of Her Majety's army
or a volunteer, for such purpose, and, if necessary, arrest and confine any mem
ber of such assembly (section 128). If the assembly cannot otherwise be dispersed
the Magistrate of the highest rank may cause it to be dispersed by military force
(section 1 20) ; for which purpose the Magistrate may require any commissioned or
non-commissioned officer of Her Majesty's Army or any volunteer to disperse such
assembly by military force and arrest and confine any member thereof ; when the
public security is manifestly endangered and no communication can be had with a
Magistrate, any commissioned officer of Her Majesty's Army or of the volunteers
may disperse such assembly by military force, and arrest and confine any person in
order to disperse such assembly, or that they be punished according to law ; if it be
comes practicable to communicate with a Magistrate such should be done and thence
forth the Magistrate's instructions are to be obeyed (section 131}.
No prosecution will lie against any Magistrate or other officer or person above
mentioned without the sanction of the Governor-General in Council; and no Magis
trate, police-officer or other officer or person will be deemed to have committed an
offence (section 132).
CHAPTER X treats of public nuisances and consists of 1 1 sections.

When a District Magistrate, a Sub-Divisional Magistrate and, if empowered by Go
vernment, a Magistrate of tiie first-class, on report or information and on taking of
evidence, thinks that any unlawful obstruction or nuisance should be removed from
any way, river, or channel ; or that any trade or occupation, or the keeping of goods
or merchandise injurious to the health or physical comfort of the community, should be
suppressed or removed or prohibited ; or that the construction of any building, or dis
posal of any substance likely to occasion conflagration or explosure, should be prevent
ed or stopped : or that any building is in such a condition that it is likely to fall and
thereby cause injury, and hence its removal, repair or support is necessary ; or that
any tank, well or excavation should be fenced, to prevent danger to the public,—the Ma
gistrate may make a conditional order requiring the person so causing the obstruction
or nuisance or danger, within a time to be fixed, to remove such obstruction, nuisance,
or danger, or to appear before himself or some other Magistrate and to move to have
the order set aside or modified. No such order made by a Magistrate will be ques
tioned in any Civil Court (section 133).
The order will, if practicable, be served on the person ; but if it cannot be so
served, it will be effected by proclamation, a copy whereof will be stuck up in such
place or places as may be fittest to convey the information to the person (section 134 .
Such person may perform the act dirested within the time prescribed, or
show cause agninst it, or apply to the Magistrate who made the order to appoint
a jury to try whether the same is reasonable and proper (section 135). If the
person fails to perform the act or to apply for a jury, he is liable to the penalty of
section 188 of the Penal Code, and the order will be made absolute (section 136).
If he appears to show cause the Magistrate will take evidence as in a summons-case,
and either stop further proceedings or make the order absolute (section 137).
B
xviii Introduction.
On an application for a jury the Magistrate will nominate the foreman and
one-half of the members, the other half being appointed by the applicant. The
Magistrate will summon the foreman and members to attend at the place, and
will fix a time within which they are to return their verdict ; the time so fixed may
be extended (section 188). If the jury or a majority of the jurors finds the order of
the Magistrate to be reasonable and proper, or make a modification which the Ma
gistrate accepts, the order will be made absolute subject to such modification; but
in other cases no further proceedings will be taken unless the Magistrate is of
opinion that there has been misconduct ou the part of the jury, in which case he
may appoint another jury (section 189). When the order has been made absolute
the Magistrate will give notice, and will further require the performance of the act
directed by the order within a fixed time; on disobedience the penalty prescribed by
section 188 of the Penal Code will apply. If the act is not performed the Magis
trate may cause it to be performed, and will recover the costs incurred by the sale of
the building or goods removed, or by distress and sale of any other moveable pro
perty ; if the property is not within the limits of the jurisdiction of the Magistrate,
the order will authorise its attachment and sale when endorsed by a Magistrate
having jurisdiction. No suit will lie in respect of anything done in good faith
(section 140).
If the applicant neglects or otherwise prevents the appointment of a jury, or
if from any cause the jury do not return their verdict within the time fixed, or
within such further time as may be allowed, the Magistrate will pass such order as
he thinks fit, which will be carried out (section 141).
If the Magistrate considers that measures should be taken to prevent imminent
danger or injury of a serious kind to the public, he may, whether a jury is to be or
has been appointed or not, issue an injunction as is required to obviate or prevent
such danger or injury, pending the jury or other determination; and on disobedience
the Magistrate may himself use or cause to be used such means as he thinks fit.
No suit shall lie in respect of anything done in good faitli (section 142).
A District Magistrate, Sub-Divisional Magistrate, or any other Magistrate duly
empowered, may order any person not to repeat or continue a public nuisance as
defined in the Penal Code or any local or special law (section 143).
CHAPTER XI treats of temporary orders in urgent cases and con
sists of only one section. It gives power to the District Magistrate, Chief Presidency
Magistrate, and Sub-Divisional Magistrate, or any other Magistrate duly empowered
by the Government or by the District or Chief Presidency Magistrate, to issue an
absolute order at once in urgent cases of nuisance and apprehended danger : but no
such order will remain in force for more than two months, unless, in case of danger
to human life, health or safety, or likelihood of a riot or an affray, the Local
Government by notification in the official Gazette otherwise directs (s. 144).
CHAPTER XII treats of disputes as to immoveable property and
consists of 4 sections. When a dispute concerning land or water, houses, fisheries,
crops or other produce of land, and the rents, or profits thereof or the boundaries
thereof exists, and is likely to cause a breach of the peace, the District Magistrate,
Sub-Divisional Magistrate, or Magistrate of the first-class, after requiring the parties
to attend the Court and to put in written statements of their respective claims as
respects the facts of actual possession, will proceed to decide, without any reference
to the merits of the claim, whether any and which of the parties was at the date of
Introduction. xix
the order in such possession, and declare such parties to be entitled to retain it until
evicted in due course of law : the order will not abate by reason of the death of any
of the parties (section 145).
If the Magistrate finds that none of the parties is then in actual possession, or
is unable to satisfy himself, he may attach such property and may appoint a receiver
subject to his control, who will exercise all the powers of a receiver appointed under
the Code of Civil Procedure, uutil a competent Court has determined the rights of
the parties (section 14C).
In disputes concerning easements the procedure above given will apply muius
mutandis (section 147).
When a local enquiry is considered necessary, the Magistrate may depute any
subordinate Magistrate to make the enquiry.furnishiag him with written instructions,
and may also declare by whom the whole or any part of the expenses is to be paid,
such costs being recoverable as if they were fines (section 148).
CHAPTER XIII treats of the preventive action of the police and
consists of 5 sections. A police-officer will interfere, to the best of his ability, to
prevent the commission of any cognizable offence (section 149) ; every information
received of a design of such offence will be communicated by him to the officer to
whom he is subordinate, and he may arrest any such person without orders from a
Magistrate and without a warrant, if it appears that the offence cannot otherwise be
prevented (sections 150, 151).
A police-officer may enter any place within the limits of his station for the
inspection, or for the purpose of searching for, any weights, measures, or instruments
for weighing kept therein that he has reason to believe are false ; and if he finds any
such false weights, &c, he will seize the sam« and give information to a Magistrate
(section 153).
V.— INFORMATION TO THE POLICE AND THEIR

POWER TO INVESTIGATE.
PART V, as the title denotes, deals with information to the
police and their power to investigate ; it consists of a chapter with 23
sections.
CHAPTER XIV treats of the information to the police and their
powers to investigate and consists of 23 sections. Information of the com
mission of a cognizable offence, if given orally to an officer in charge of a police-
station, will be reduced to writing and will be read over to the informant, who will
be required to sign it, and if given in writing, must also be signed by the informant ;
the information will be entered in a book to be kept by such officer (section 154) :
that respecting a non-cognizable offence will also be entered in a book kept for
the purpose, and the informant will be referred to the Magistrate. No police-
officer will investigate a non-cognizable case without the orders of a Magistrate,
but on receiving such orders the police-officer may exercise all the powers, except as
to arrest, as in cognizable cases (section 155).
An officer in charge of a police-station may investigate, without an order
from a Magistrate, a cognizable case in which a Court exercising jurisdiction would
have power to enquire into or try under Chapter XV ; such proceedings of the
XX Introduction.
police-officer will not be questioned. Any Magistrate empowered may order an
investigation (section 156).
On investigation or otherwise, if an officer in charge of a police-station suspects
the commission of an offence which he is empowered to investigate, he will forth
with send a report to the Magistrate, and proceed in person, or depute one of his
subordinates to the spot to investigate or to take such steps as may be necessary for
the discovery and arrest of the offender ; when information is given against any person
by name and the case is not of a serious nature, the police-officer need not proceed
personally or depute a subordinate officer to investigate ; if there is not sufficient
ground for entering into an investigation, he will not do so, but record the fact and
inform the complainant what he has done, but the police-officer must in his report
state his reasons for not so complying with the requirements of the law (sections 157
and 158). Such report may, if the Local Government ho direct, be submitted through
a superior officer of police, who may also give instructions to the officer of the police-
station and, after recording such instructions on the report, transmit the same to
the Magistrate, who, if he thinks fit, may proceed or depute a subordinate Magis
trate to proceed, or direct an investigation, or hold a preliminary and informal
enquiry into or otherwise dispose of the case (section 159).
A police-officer making an enquiry may by written order require the attendance
of any person, within his own or adjoining police-station, who appears to be
acquainted with the circumstances of the case (section 160). The police-officer will
orally examine any person acquainted with the facts and circumstances of the
case, and may reduce the same into writing ; such person is bound to answer truly
all questions other than answers which may have a tendency to expose him to
a criminal charge, penalty, or forfeiture (section 161).
No statement other than a dying declaration made by any person to a police-
officer in the course of an investigation will be reduced to writing and signed by
that person, or will be used in evidence, except to the extent provided in section 172
or in a proceeding against such person. The provision of section 27 of the Evidence
Act is not affected (section 162).
No inducement or threat or promise is to be offered or made or caused to be
offered or made, as is mentioned in section 2-1 of the Evidence Act ; but no caution
is to be administered to prevent any statement which such person is disposed to
make of his own free will (section 163).
A Magistrate may record any statement or confession made to him in the
course of investigation, if on questioning the person he believes that it was made
voluntarily, and he will append a memorandum to that effect (section 164).
A police-officer making an investigation may, if he considers the production of
any document or other thing to be necessary for the purpose of his investigation,
and if he has reason to believe that a summons or order under section 9 4 will not
have the desired effect, or when possession is not known to be with any person,
search or cause search to be made within the limits of his own station ; if he deputes
a subordinate officer he will give to that officer directions, in writing, as to the
document or other thing for which the search is to be made, naming the place to
be searched : the provisions as to search-warrants under this Code will apply
(section 165) : the officer may also require the officer in charge of another police-
station to cause search to be made, and such officer will proceed to have the search
made, and if anything is found he will forward it to the officer at whose instance
the search was conducted (section 166).
Introduction. xxi
When the investigation is not completed within 24 hours, and there is ground to
believe the accusation or information to be well founeded, the police-officer will
transmit a copy of the diary and forward the accused, if any, to the nearest Magis
trate ; such Magistrate may from time to time authorise the detention of the accused
for a term not exceeding 15 days, but if ho considers further detention unnecessary,
he is to forward the accused to the Magistrate having jurisdiction. A copy of the
order extending time with the reason for making it will, if the Magistrate ordering
is not the District or Sub-Divisional Magistrate, be forwarded to the Magistrate
to whom such Magistrate is immediately subordinate (section 167).
If it appears to the officer in charge of a police-station that there is not
sufficient evidence or reasonable grounds of suspicion to justify the accused being
sent to a Magistrate, he will release him, if in custody, on his bond to appear when
required before a Magistrate, and- the Magistrate having power may discharge the
bond or pass any other order (section 1G9) ; but if there is sufficient evidence or reason
able grounds, the accused will be forwarded to the Magistrate if in custody, or if the
offence is bailable, he may be allowed to give bail for his appearance before the
Magistrate ; the police-officer will at the same time forward to the Magistrate any
weapon or other thing which may be necessary to produce, and will require the com
plainant, if any, and such other persons who are acquainted with the circumstances
of the case, to execute a bond to appear before the Magistrate : the term District
Magistrate or Sub-Divisional Magistrate mentioned in the bond will include any
Court to which the case for enquiry or trial is referred and the day fixed is the day
on which the accused person is to appear. A copy of the bond will be delivered to
the person executing it, the original being sent to the Magistrate with the report
(section 170). The complainant or witnesses arc not required to accompany the
police-officer, nor to be subjected to unnecessary restraint or inconvenience ; a per
sonal bond is all that is necessary, but if they or any one of them refuse to attend
or to execute the bond, they will be forwarded under custody (section 171).
A police-officer making an enquiry will, day by day, enter his proceedings in a
diary. A Criminal Court may send for the diary to aid in the enquiry or trial, but
the accused or his agent will not be entitled to call for the diary or see it : if, how
ever, it is used by the police-officer to refresh his memory, and the Court uses it for
contradicting the police-officer, the provisions of sections 161 and 145 of the Evi
dence Act will apply (section 172).
The investigation by a police-officer when completed will be forwarded to the
Magistrate empowered to take cognizance of the offence on a police report in such
forms as may be prescribed by the Local Government. Such report will be sub
mitted through a superior officer who may, pending the order of the Magistrate,
direct further investigation. When the accused has been released on his bond, the
Magistrate may make such order for the discharge of his bond or otherwise as he
thinks fit (section 173).
An officer in charge of a police-station and other officer appointed especially by
Government for the purpose will, on receiving information of a suicide, or of death
caused by another, or by an animal, or by machinery, or by an accident, or of a
death caused under circumstances which lends suspicion that it has been caused by
another, immediately inform the Magistrate empowered to hold inquests, and will
proceed to the place where the dead body is, and make an investigation and draw up
a report of the apparent cause of death, describing the wound's, fractures, &c, as are
found on the body, stating the maimer or weapon by which^such marks appear to have
xxii Introduction.
been caused ; the report will be signed by the police-officer and such other persons
who concur therein ; when there is any doubt as to the cause of death, the body will be
forwarded to the nearest Civil Surgeon or other medical man, if the state of the
weather and the distance admit of its being so forwarded. The District or Sub-Divi-
sonal Magistrate and any Magistrate empowered by Government may hold an in
quest. The above provisions do not apply in case of the death of a prisoner in jail,
section 15 of Act No. IX of 1894 will apply to such cases (section 174). In case
of death of any person while in police custody, the Magistrate empowered to hold an
inquest may enquire into it instead of or in addition to the investigation by a police-
officer ; he will record the evidence in any of the manner prescribed by the Code.
A Magistrate has power to order the disinterment of the body of a deceased
already interred to discover the cause of death (section 176).
VI.— PROCEEDINGS IN PROSECUTIONS.

PART VI deals with proceedings in prosecution and consists of 16
chapters with 227 sections.
CHAPTER XV treats of the jurisdiction of the Courts in enquiries
and trials and consists of 23 sections. It directs offences to be tried within the
local limits of the jurisdiction of the Court of the place where it was committed (sec
tion 1 77) ; but the Local Government may direct that any case or class of cases
may be tried in any Sessions Division (section 178). An accused may be tried in
the district where the act is done, or where consequence ensues (section 179) ; but
where an act is an offence by reason of relation to another offence, he may be tried
within the local limits of the Court in whose jurisdiction either act was done (sec
tion 180). The offence of being a thug, or belonging to a gang of dacoits, or
having escaped from custody, may be enquired into or tried by a Court within the
local limits of whose jurisdiction the person charged is ; that of criminal misap
propriation or criminal breach of trust, by a Court in whose jurisdiction any part of
the property was received or the offence committed ; that of theft, by a Court with
in whose jurisdiction the thing was stolen or was possessed by the thief or receiver of
stolen property (section 181). In cases where the scene of the offence is uncertain
or not in one district only, or where the offence is continuing or consists of several
acts, it may be enquired into or tried by a Court having jurisdiction over any such
area (section 182) ; if committed on a journey or voyage, it may be enquired into or
tried by a Court through whose jurisdiction the offender, or the person against
whom, or the thing in respect of which, the offence was committed, passed in the
course of that journey or voyage (section 188).
Offences against the Railway, Telegraph, Post Office, or Arms and Ammunition
may be enquired or tried in the Presidency-towns, whether the offence has been com
mitted within such town or not, when the offender and all the witnesses for the pro
secution are to be found within such town (section 184). In cases of doubt as to
the district where enquiry or trial should take place, the High Court within the local
limits of whose appellate jurisdiction the offender actually is, will decide (section
185).
When a Magistrate has reason to believe that a person within his jurisdiction
has committed an offence outside such limit which cannot be enquired into or tried
Introduction.
within such local limit, but is triable under some law in British India, such Magis
trate may enquire into the offence and compel such person to appear before him, and
send such person to the Magistrate having jurisdiction to enquire into or try such
offence or take bail if the offence is bailable (section 180). British subjects are
liable for offences committed out of British India as if they had been committed at any
place within British India ; but no charge will be enquired into unless the Political
Agent certifies to the fitness of enquiry into the charge; where there is no Political
Agent the Local Government's sanction is necessary (section 188).
A Magistrate may take cognizance of any offence upon complaint, upon police
report, upon information from any person other than a police officer, or upon his
own knowledge or suspicion (section 190). Sessions Judges and High Courts can
not take cognizance as a Court of original jurisdiction (sections 193 and 194). No
Court can take cognizance of the offence of contempt of the lawful authority of public
servants, of certain offences against public justice, of certain offences relating to docu
ments, or abetment of such offences, except upon the previous sanction or complaint
of the public servant or Court concerned, or of some other Court to which such
Court or public servant is subordinate ; the sanction may be expressed in general
terms and need not name the accused person, but must specify the Court or other
place in which, and the occasion on which, the offence was committed (section 195).
No Court will take cognizance of offences against the State (sections 127 and
294, Penal Code), except upon complaint made by order of or under authority from
Government (section 196).
No Court will take cognizance of any offence of which a Judge or public ser
vant, not removable from his office without sanction of Government, is accused,
without the previous sanction of Government. The Government may determine the
Court and the manner in which such Judge or public servant is to be tried (sec
tion 197).
Prosecution for adultery or enticing away a married woman can only be taken
cognizance of on the complaint of the husband (section 199).
CHAPTER XVI treats of complaints to Magistrates and consists of
6 sections. A Magistrate taking cognizance of an offence on complaint will examine
the complainant on oath, the substance of which is to be reduced to writing and
signed by the complainant and the Magistrate ; when the complaint is made in
writing, the Magistrate will not be required to examine the complainant before
transferring the case. When the Magistrate is a Presidency Magistrate, such ex
amination may or may not be on oath, and it need not be reduced to writing ;
but before the matter of the complaint is brought before him, he may require it to
be reduced to writing. When the case is transferred, the Magistrate to whom it has
been sent need not examine the complainant if he has already been so examined by
the Magistrate transferring the case (section 200). If the complaint is made in
writing to a Magistrate not competent to take cognizance, he will return it to the
complainant with an endorsement to be presented in the proper Court ; if made
orally, the Magistrate will record the fact and refer the complainant to the proper
tribunal (section 101). If the Magistrate is not satisfied as to the truth of
a complaint he will, after examining the complainant and recording the reason of
being so dissatisfied, postpone the summoning of witnesses and enquire into the case
himself, or direct a previous local investigation by an officer subordinate to him or by
a police-officer ; if the enquiry has been made by some person who is not a Magistrate
xxiv Introduction.
or police-officer, he may exercise all the powers of a police-officer, except the

power to arrest without warrant (section 202). The Magistrate may, after briefly
recording his reasons, dismiss the complaint if, after examining the complainant
and considering the result of the local enquiry, he finds no sufficient ground for
proceeding (section 208).
CHAPTER XVII treats of the commencement of proceedings be
fore a Magistrate and consists of 2 sections. If, in the opinion of the Magistrate
taking cognizance, there is sufficient grounds for procesding, and the case is one in
which, according to the fourth column of the second schedule a summon ought to
issue, he will issue his summons to the accused ; if it appears to be a case in which
a warrant ought to issue, he may issue a warrant or, if he thinks fit, a summons.
When by law any process fees are payable, no summons will be issued until the
fees are paid, and if such fees are not paid the Magistrate may dismiss the case
(sections 204 and 205).
CHAPTER XVIII treats of enquiry into cases triable by the Court

of Session or High Court and consists of 15 sections. The Magistrates empow
ered to commit for trial to the Court of Session or High Court are : (i) Presiden
cy Magistrates, (ii) District Magistrates, (iii) Sub-Divisional Magistrates, (iv)
Magistrates of the first-class, (v) any Magistrate empowered by the Local Gov
ernment (section 206). The procedure in enquiries preparatory to commitment are :
the Magistrate will proceed to examine the complainant, take evidence in support
of the prosecution, and on behalf of the accused, and such as he may call for him
self. The accused will be at liberty to cross-examine the witnesses for the prose
cution, the prosecutor may re-examine. On the application of the prosecutor or
the accused, the Magistrate will issue process for the attendance of any witness or
the production of any document or other thing, nnless, for reasons to be recorded,
the Magistrate deems it unnecessary (sections 207 and 208). If, on the examination
of the witnesses and the accused, the Magistrate finds that there are not sufficient
grounds for committing the accused for trial, lie will record his reasons and dis
charge the accused, unless it appears to him that ?uch accused ought to be tried
before himself or some other Magistrate. Nothing will prevent the Magistrate
from discharging the accused at any previous stage of the case (section 209).
When a prima facie case is made out the Magistrate will frame a charge declaring the
offence of which the accused is charged ; the charge will be explained to the accused,
and a copy may be given him free of charge ; the accused will be asked to give, either
orally or in writing, a list of his witnesses whom he wishes to be summoned ; the
Magistrate will alkw the accused to give a further list of witnesses at any subsequent
period and may examine such witnesses (sections 210, 211, 212). After examin
ing the witnesses for the accused, the Magistrate may commit the accused for
trial before the Sessions Judge or the High Court ; but if he is satisfied that there
is not sufficient cause to justify the commitment, he may cancel the charge and
dismiss the accused (section 218).
When a person (not being a European British subject) is accused before a
Magistrate (not being the Presidency Magistrate) of having committed an offence
conjointly with a European British subject, he will be committed with such
European British subject for trial before the High Court, and not before the
Court of Session (section 214). A commitment once made can only the quashed,
by the High Court (section 215).
Introduction. xxv
After commitment the Magistrate will summon the witnesses for the accused;
but if he considsrs that any witnesses are included for vexation or delay or defeat
ing the ends of justice, he may refuse to summon them unless the necessary expense
to defray the costs, &c, be deposited. The complainant and witnesses will be called
upon to enter into a bond for attendance before the Court of Session or High
Court. If the complainant and witnesses refuse the Magistrate will detain them
and send them in custody to the Court of Session or High Court (section 217).
Notice of commitment will be given to the proper officer (section 218).
The Magistrate may, if he thinks fit, summon supplementary witnesses before
the trial (section 219).
Until and during the trial the Magistrate may, subject to the provision of the
taking of bail, commit the accused to custody (section 220).
CHAPTER XIX treats of the charge and consists of 20 sections. A
charge will state the offence of which the accused is charged ; it will be described by
any specific name which the law gives; if the law does not give it any specific name,
so much of the definition will be stated as will give the accused notice of the matter of
which he is charged and the law and section under which he is charged. A charge
made means that " every condition required by law is fulfilled." In Presidency-
towns the charge will be written in English : elsewhere, in English or in the langu
age of the Court. If the accused has previously been convicted and it be intended
for the purpose of sentence, the fact with date and place of the previous conviction
must be stated in the charge ; if it be left out the Court trying the case may add it
at any time section 221;.
Particulars as to time, place, and the person against whom, or the thing against
which, and the manner in which it is alleged to have been committed, will have to be
stated (sections 222 and 223).
No error in stating the offence or the particulars and other matters in the charge
will be regarded as material, unless the accused was misled, or it has occasioned a
failure of justice. Any objection to a charge must be taken at the earliest opportu
nity ; if not so taken, no finding, sentence or order will be reversed on appeal, &c.
(section 225). If any pereo:i has been committed without a charge, or on an im
perfect or erroneous charge, the Court, and, in the case of the High Court, the Clerk
of the Crown, may frame a charge or add to or otherwise alter it (section 226).
A Court may alter or add to a charge at any time before judgment, or before
the verdcit of the jury, or opinion of the assessors ; such alteration being read and
explained to the accused (section 227). After such alteration the Court may proceed
on with the case if it is not likely to prejudice the accused or the prosecution, but if
it is, may order a new trial or adjourn the trial (section 229). If the altered charge
requires previous sanction, the case will not be proceeded without such sanction.
The prosecutor and the accused will be allowed to re-call or re-examine the witnesses,
and also to call further witnesses (section 231).
If the appellate Court be of opinion that any person convicted of an offence
was misled in his defence owing to the absence of, or an error in, the charge, it will
order a new trial upon a charge framed ; or if it be of opinion that no valid charge
could be preferred, it will quash the conviction (section 232).
xxvi Introduction.
For every distinct offence there will be a separate charge, but if the accused has
committed more than one offence of the same kind within twelve months, he may be
charged and tried in one trial for any number of them not exceeding three. Offences
are to be deemed to be of the same kind if they are punishable under the same sec
tion of the Penal Code or any special or local law ; but when the accused is charged
with criminal breach of trust, or criminal misappropriation, it will not be necessary
to specify the particular items or the exact dates (section 233). If more offences
than one are committed by the same person he may be charged with and tried at one
trial for every such offence. If the acts alleged fall within the definition of two or
more offences, the accused may be charged and tried at one and the same trial for
every such offence. If there are several acts of which one or more of itself constitute
an offence and, when combined, a different offence, the accused may be tried at one
trial for the offence when combined, or for the offence constituted by one or more
of such acts ; but this will not affect the provision of the Penal Code, section 71
(section 235). Where a single act or series of acts is of such a nature that it is
doubtful what offence has been committed, the accused may be charged with having
committed all or any of such offences, and any number of such charges may be tried at
once, or he may be charged in the alternative (section 230). When an accused is
charged with one offence and it appears in evidence that he has committed another,
he may be convicted for the offence which he has been shown to have committed,
though not charged (section 237). When the offence proved was included in the
combination of the offence charged, the accused may be convicted of the minor
offence ; but it does not authorise a conviction for breach of contract, defamation,
offences against marriage, adultery, or enticing away a married woman, without a
complaint (section 238).
Persons may be charged jointly or separately as the Court thinks fit when, in
the same transaction, one person is accused of committing the offence and another of
abetment of or attempt to commit it (section 239).
When, on a charge containing more heads than one against the same person, a
conviction has been had on one or more of such charge, the prosecutor may withdraw
the remaining charge or charges with the consent of the Court, or the Court may of
its own motion stay the enquiry or, trial. Such withdrawal will amount to an acquittal,
unless the conviction is set aside, in which case the Court (subject to the order of
the Court setting aside the conviction) may proceed to enquire into or try the charge
or charges withdrawn (section 240).
CHAPTER XX treats of trials of summons-cases by Magistrates
and consists of 10 sections. When an accused person appears or is brought before
the Magistrate, the particulars of the offence will be stated to him, and he will be
asked if he has any cause to show why he should not be convicted ; no formal charge
will be framed. If the accused admits, his admission will be recorded in the words
used by him, and if he does not show sufficient cause, the Magistrate will convict him.
If he does not make such admission, the Magistrate will hear the complainant and
take all his evidence, also hear the accused and lake all his evidence; the Magistrate
may issue process on the application of the complainant or accused to compel the
attendance of witnesses and the production of any document or other thing, and may
order deposit of money for reasonable expenses of the witnesses (sections 241 — 244).
If the Magistrate finds the accused not guilty, he will record an order of acquittal ;
if he finds the accused guilty, he will pass a sentence according to law (section 245).
The finding will not be limited by the terms of the complaint or of the summons
Introduction. xxvii
(section 246). If the complainant does not appear the Magistrate will acquit the
accused, unless for some reason he thinks proper to adjourn the hearing (section
247). The complainant may before final order withdraw his complaint, and
if the Magistrate grants the application, he will acquit the accused (section 248).
The Magistrate may, with the previous sanction of the District Magistrate, for
reasons to be recorded by him, stop the proceedings without pronouncing any judg
ment either of acquittal or conviction, and release the accused (section 249).
When the Magistrate discharges or acquits the accused and considers that the
accusation was frivolous or vexatious, he may order the complainant to pay to the
accused or each of the accused compensation not exceeding fifty rupees ; but before
making the order, the Magistrate will record and consider any objection which
the complainant or informant may urge, and give his reasons for awarding the
compensation : such compensation will be recoverable as if it were a fine, but if not
recovered, the imprisonment will be simple and not exceeding thirty days. If the
order for compensation is passed by a second or third-class Magistrate the complain
ant may appeal from such order. If the order is appealable the compensation will
not be paid until the period allowed for appeal has elapsed or the appeal has been
decided. The Civil Courts will take into account the amount so paid in suits for
compensation (seetion 250).
CH APTER XXI treats of trials of warrant-cases by Magistrates

and consists of 9 sections. When an accused person appears or is brought before a
Magistrate, the Magistrate will proceed to hear the complainant and such evidence
as is produced for the prosecution ; he will ascertain from the complainant or other
wise the names of persons likely to be acquainted with the facts of the case and will
summon them (section 252). If he finds that no case is made out he will dis
charge the accused. The Magistrate may also, after recording his reasons, discharge
the accused at any previous stage (section 253). If the Magistrate is of opinion
that there is ground for presuming that the accused has committed an offence, he
will frame a charge (section 254), will read and explain it to the accused, and ask
him whether he is guilty or has any defence to make ; if the accused pleads guilty,
the Magistrate will record the plea and may convict him thereon (section 255) ; if
the accused refuses to plead, or does not plead, or claims to be tried, he will be
required to state whether he wishes to cross-examine any and which of the witnesses
for the prosecution whose evidence has been taken. The evidence of the rest of the
witnesses will then be taken, and the accused will be called upon to enter on his
defence and to produce his evidence. Any written statement put in by the accused
will be filed with the record (section 256). If the accused applies for process for
compelling the attendance of any witness for examination or cross-examination, or
the production of any document or other thing, the Magistrate will issue such pro
cess, unless he considers it is for the purpose of vexation or delay, or for defeating
the ends of justice ; but when an accused person has cross-examined or had an
opportunity of cross-examining any witness, the Magistrate will not be compelled to
snmmon snch witnesses, unless he considers it necessary. The Magistrate may re
quire reasonable expenses to be deposited in Court (section 257"). If the Magistrate
finds the accused not guilty, he will record an order of acquittal ; if guilty, he will
pass sentence according to law (section 258). If the complainant is absent on the
day fixed for hearing the Magistrate may, if the offence is couipoundable, discharge
the accused (section 259).
* NOT!.— Very important alterations have been made in tectiom 256 and 267 in '*<• M»<**.
xxviii Introduction,
CHAPTER XXII treats of summary trials and consists of 6 sections

The District Magistrate, a Magistrate of the first-class if empowered by the Local
Government, and any Bench of Magistrates invested with first-class powers if em
powered by the Local Government, may, if he or they think fit, try all or any of th«
following offences in a summary way :-—
(1) Offences not punishable with death, of itolen property, when the value
transportation or imprisonment for a does not exceed fifty rupees.
teim exceeding six months. (8) Mischief, causing damage to the
(2) Offences relating to weights and amount of fifty rupees or upwards.
measures. (9) House-trespass : Lurking house-tes-
(3) Hurt under section 323 of the renal pass.
Code. (10) Insult to provoke a brt ach of the peace,
(4) Theft under sections 379, 380, 3S1 of tbe and criminal intimidation.
Penal Code. (11) Abetment of any of the foregoing
(6) Dishonest misappropriation of property. offences.
(6) Receiving or retaining stolen property (12) An attempt to commit any of the fore
when the va'ue does not. exceed fifty go ng offences.
rupees. (13) Coniplainis tinder the Cattle-Trespass
(7) Assisting in the concealment or disposal Act, 1871.
No case in which a District Magistrate exercises special powers under section
84 will be tried in a summary way. When the Magistrate or Bench consider it
undesirable that the accused be tried summarily, the Magistrate or the Bench may
proceed to ve-hear the case in the manner provided by the Code.
The Local Government may confer on Bench of Magistrates invested with the
powers of a Magistrate of the second or third class power to try summarily any of
the following offences: —
(1) Defiling the water of a public stream (9) Having in possession obscene books
or reservoir, section 277, Penal Colo. for sale, fcc, section 293, Penal
(2) Making atmosphere noxious, section 27, Code.
Penal Code. (10) Obscene songs, tection 294, Penal
(3) Driving or riding rashly, section 279, Code.
Penal Code. (11) Causing hurt, section 323, renal Code.
(4) Deilfng with fire or incombustible mat- (12) Causing hurt on provocation, section
teis, Eection 285, Penal Code. 334, Penal Code.
(5) Dialing with explosive substance, sec (13) Djingany act which endangers human
tion 286: Penal Coie. lilc, section 330. Penal Cole.
(6) Omitting lo take order with any anima', (14) Wrongfully restraining any person,
seel ion 2S9, Pena' Code section 341, Penal Code.
(7) Committing a public nuisance, section (15) Assault, section 352, Penal Code.
290, Penal Code. (16) Mischief, section 426, Penal Code.
(8) Sale, &e., of obscene book, section 292, (17) Criminal trespass, section 417, Penal
Penal Code. Code.
The procedure prescribed for summons-cases will be followed in summons-cages
and the procedure of warrant-cases will be followed in warrant-cases, but no sentence
of imprisonment for more than three months will be passed (sections 260, 261, 2(i2)
In cases where there is no appeal allowed the Magistrate will enter in such form
as the Local Government proscribes the following particulars (section 2G3):—
(1) The serial number ;
(2) The date of the commission of the crime :
(o) The date of report or complaint ;
(4) The name of the complainant ;
(5) The name, parentage and residence of the accused :
(G) The offence complained of and the offence, if any, proved and the value of
the property which gives jurisdiction ;
Introduction. xxix
(7) The [ilea of the accused ;

(8) The finding and, in case of conviction, a brief statement of the reason ;
(9) The sentence or other final order ;
(10) The date on which the proceeding terminated.
But in case where an appeal lies the Magistrate, besides entering the particulars
above given, will record a judgment embodying the substance of the evidence. Such
judgment will be the only record (section 264).
The particulars and judgment will be written by the presiding Magistrate, and
in case of Bench of Magistrates, if the Local Government Authorises, the particulars
and judgment may be written by an officer appointed in this behalf, and will be signed
by each member of the Bench ; if no authorisation is given, the record prepared
by a member and signed by all will be the proper record. If the Bench differ the
dissentient member may write a separate judgment (section 2C5).
CHAPTER XXIII treats of trials before a High Court and Courts
of Session and consists of 70 sections. In this chapter, except in sections 276 and
807 and in Chapter XVIII, the expression "High Court" means a High Court
established or to be established under the Indian High Courts Act, 1861 (24 & 25
Vic, c. 104), and includes the Chief Court of the Punjab, the Court of the Recorder
of Rangoon, and such other Courts as the Governor-General in Council may declare
to be High Courts (section 2U0). All trials before a High Court will be by jury, and
all criminal eases transferiei to a High Court under the Code or under the Letters
Patent may, if the High Court so direct, be by jury (section 267).
All trials before a Court of Session will be either by jury or with the aid of
assessors : the Local Government may, by an order in the official Gazette, direct
the trial of all offences or any particular class of offences to be by jury and may re
voke or alter such order. The Local Government may direct at what place or
places the Court of Session will hold its sitting, and may rescind or alter its order.
When the accused is charged with several offences, some triable by jury and some
with the aid of assessors, he will be tried by jury for such as are triable by jury and
with the aid of the jurors as assessors for such of them as are not triable by jury
(sections 2G8 and 2G9). At every trial the prosecution will be conducted by a Public
Prosecutor (section 270).
The accused will be brought before the Court, the charge read out and explained
to him, and be will be asked whether he is guilty of the offence charged or he claims
to be tried ; if he pleads guilty, the plea will be recorded, and he may be convicted ;
if he refuses to, or does not plead, or claims to lie tried, the Court will choose jurors
or assessors, and, subject to the right of objection, the same jurors may try, or the
same assessors may aid, in the trial of as many accused persons successively as the
Court thinks fit (section 272).
In trials before High Courts, when it appears before the commencement of the
trial that any charge or portion thereof is unsustained, the Judge may make an
entry to that effect on the charge : such entry will have the effect of staying proceed
ings upon that charge or portion thereof (section 273).
In trials before the High Court the jury will consist of 9 persons ; in trials
before the Court of Session, of an uneven number of not less than three or more
than nine as the Local Government may direct (section 274).
In trial before a Court of Session by jury of a person other than a European or
American, a majority of jurors may, if he so desires, consist of persons who are
neither European nor American ' section 275).
XXX Introduction,
The jurors will be chosen by lot as the High Court by rule may direct. In case of
deficiency of persons summoned the number required may, with the permission of the
Court.be chosen from sucli other persons as may be present. In Prcsidency-t iwns
when an accused is charged with an offence punishable with death, or if in any
other case a Judge of the High Court so directs, the jurors may be chosen from the
special jury list ; and in any district in which the Local Government has declared the
trial of certain offences to be by special jury, the jurors may, if the Judge so directs,
be chosen from the special jury list (section 27(i).
As each juror is chosen and called the accused will be asked if he objects to be
tried by such juror ; if he or the prosecution objects, the ground of objection must
be stated ; but in trials in High Courts, objections without ground stated will be
allowed to the number of eight, both on behalf of the Crown and on part of the person
or persons charged (section 277). Objection may be taken on the ground of pre>umcd
or actual partiality ; of alienage or deficiency in the qualifications required by any law
or rule ; of being under the age of 21 years or above the age of sixty ; or of having
by habit or religious vows relinquished all care of worldly affair- ; holding any office
in or under the Court ; of executing any duties of police or being entrusted with
police duties ; of having been convicted of any offence which renders him unfit to
serve ; of inability to understand the language ; of any circumstance which in the
opinion of the Court renders him improper as a juror. Every objection taken will be
decided by the Court, which will be final, and if the objection is allowed, any other
juror summoned may supply the place of the juror ; if there be no such juror present,
then by any other whose name is on the list of jurors and is present in Court, pro
vided that no objection as above is taken and allowed.
The jurors when chosen will appoint a foreman ; the foreman will preside at the
debates of the jury and deliver the verdict, and ask any information from the Court.
If a majority do not agree within a reasonable time to appoint a foreman, he will be
appointed by the Court. After the appointment of the foreman the jurors will be
sworn. If a juror for sufficient reason is unable to attend, or is otherwise absent, or
is unable to understand the language, a new juror will be added ; or the jury will be
discharged and another jury chosen ; in either case, the trial will commence anew
(sections 280—282). The Judge may also discharge the jury when prisoner becomes
incapable of remaining at the bar (section 283).
In trials by assessors the presiding Judge will choose two or more from among
the persons summoned to act as such ; if during the course of a trial any assessor
is from sufficient cause prevented from attending or is absent, the trial will proceed
witli the aid of the other assessor or assessors ; if all the assessors are prevented from
attending or are absent, a new trial will be held witli the aid of fresh assessors
(sections 284 and 285).
The prosecution will open the case by reading from the law the description of
the offence charged, and stating shortly by what evidence he expects to prove the
guilt of the accused ; he will then examine his witnesses (section 28(i), and the ex
amination of the accused before the Magistrate will be tendered and read in evidenco
(section 287) ; the evidence recorded in the presence of the accused before the com
mitting Magistrate may at the discretion of the presiding Judge, if such witness is
produced and examined, be treated as evidence in the case (section 288). The ac
cused will, after any examination of his, be asked whether he means to produce
evidence. If he does not, the prosecutor may sum up his case ; and if the Court
considers that there is no evidence that the accused committed the offence, it may
Introduction. xxxi
in a cisc tried with the aid of assessors record a finding, and in a case tried by a
jury direct the jury to return a verdict of not guilty If the accused or any one of
several accused adduces evidence, but the Court considers that there is no evidence
that the accused committed the offence, the Court may, if the case is tried with the
aid of assessors, record a finding, and if tried by a jury, direct the jury to return a
verdict of not guilty. But if the Court considers that there is evidence that the
accused committed the offence it will call upon the accused to enter on his defence
(section 289). The accused or his pleader may then open his case, stating the
facts of the law on which he relies, and making such comments as he desires on the
evidence of the prosecution. He may then examine his witnesses, and after their
cross-exauiination and re-examination, may sum up his case (section 290). The
accused will be allowed to examine any witness not previously named by him who is
in attendance, but will not as a right, except as provided in sections 211 and 231,
be entitled to have them summoned (section 291). If the accused when asked has
stated that he means to adduce evidence, the prosecutor will be entitled to reply ;
but if he does not adduce evidence, the prosecutor will not be entitled to reply
(section 292).
When the Court considers that the jury or assessors should view the place
where the offence is alleged to have been committed, or any other place in which
any other transaction material to the trial is alleged to have been com
mitted, the Court will make an order that the jury or assessors, as a body, be
taken under the care of an officer of the Court, who will not suffer any person to
hold any communication with them, and will conduct them immediately to the Court
(section 293). When a juror or assessor is personally acquainted with any re
levant fact, he will inform the Jndê, whereupon he will be examined, &c. (section
294). If the trial is adjourned, the jury or assessors will attend at the adjourned
sitting until the conclusion of the trial (section 295). The High Court will make
rules as to the keeping of the jury during the trial if it lasts more than one day
(section 29C). •
When the case for the defence and the prosecutor's reply are concluded, the
Judge will charge the jury, summing up the evidence on the case and layiug down
the law by which the jury are to be guided (section 297).
The duty of the Judge is to decide all questions of law arising in the course of
the trial ; the admissibility of evidence or the propriety of questions asked ; and to
prevent the production of inadmissible evidence ; decide upon the meaning and con
struction of all documents ; to decide upon all matters in order to enable evidence
of particular matters to b:; given ; to decide whether any question which arises is for
himself or the jury, his decision will be binding on the jury ; the Judge may, if he
thinks fit in summing up, express to the jury his opinion upon any question of fact
or of mixed law and fact relevant to the proceeding (section 298).
It is the duty of the jury to decide which view of the facts is true and then to
return the verdict ; to determine the meaning of all technical terms ; to decide all
questions which according to law are deemed questions of fact ; and to decide
whether general indefinite expressions do or do not apply to particular cases (section
299).
The jury may retire to consider their verdict. No person other than a juror
will speak to, or hold communication with, any member of such jury (section 300).
The foreman will inform the Judge what is the verdict of the majority ; if the jury
xxxii Introduction.
are not unanimous, the Judge may require them to retire and further consider the
matter, after which the jury may deliver their verdict, although they are not una
nimous (sections 301, 302). The jury must return a verdict on all the heads of
the charge (section 303). If by accident or mistake a wrong verdict is delivered,
the jury may immediately after it is recorded amend the verdict, and it will stand
amended (section 304).
In a case tried before a High Court, if the jury is unanimous, or as many as
six are of one opinion and the Judge agrees with them, the judgment will be in
accordance therewith ; but if the Judge disagrees with the majority he will dis
charge the jury (section 305).
In a case tried before a Court of Session, if the Judge does not think it neces
sary to disagree with the jurors or a majority of them, he will give judgment ac
cordingly. If the accused is acquitted, the Judge will record a judgment of ac
quittal ; if convicted, he will pass sentence according to law (section 3U6). When
the Judge disagrees with the verdict of the jurors or a majority of them, and is
clearly of opinion, for the ends of justice, that the case be sent to the High Court,
he will do so, recording the grounds of his opinion, and if the verdict is one of ac
quittal, he will state the offence he considers to have been committed, but will not
record judgment, either of acquittal or conviction, but will remand the accused to
custody or admit him to bail. In dealing with the case, the High Court may ex
ercise any of the powers of the Appellate Court, and may acquit or convict the
accused of any offence of which the jury could have convicted him upon. If it con
victs, it may pass such sentence which the Court of Session might have passed
(section 307).
Whenever a jury is discharged the accused may be detained in custody or on
bail. He will again be tried by another jury, unless the Court considers that he
should not be re-tried, whereupon the Judge will make an entry on the charge, and
such entry will operate as ah acquittal (section 308).
In trials with the aid of assessors, when the trial is concluded, the Judge will
sum up the evidence and require each of the assessors to state his opinion orally,
and he will record such opinion: the Judge will then give judgment, but he is not
bound to conform to the opinion of the assessors; he will pass sentence according to
law (section 309).
When a previous conviction is to be established in a trial by jury or with the
aid of assessors, that part of the charge, stating the previous conviction, will not
be read out in Court, nor the accused asked to plead to it, until he has pleaded
guilty to, or been convicted of, the subsequent offence ; if he pleads guilty, he will
then be asked whether he has been previously convicted. When the trial is with the
aid of assessors, judgment in writing need not be given until the question of previous
conviction has been disposed of. If the accused admits his previous conviction the
Judge will pass sentence, but if he denies it, or refuses, or does not answer to such
question, the jury or the Court and assessors will hear evidence (section 310).
\_U'ere follow the procedure for the preparation of the lift ofjurors or the High
Court ; the summoning ofjurors for the said Court ; the consequences ou the failure,
ofjurors so to attend (sections 312-318) : the preparation ofthe list oi jurors and
assessors for the Court of Session ; summoning ofjurors and assessors for that Co rt ;
penalty for non-attendance (sections 319-332): and special provisions for the High
Courts (sections 333-336.)]
Introduction. xxxiii
CHAPTER XXIV treats of general provisions as to enquiries and

trials and consists of 16 sections. In cases triable exclusively by the Court of Session
or High Court, the District Magistrate, a Presidency Magistrate, any Magistrate of
the first-class enquiring into the offence, or with the sanction of the District Magis
trate any other Magistrate, may tender a pardon to any person supposed to have been
directly or indirectly concerned in, or privy to the offence under enquiry, on condition
of his making a full and true disclosure of the whole circumstances within his know
ledge relative to such offence and of every other person concerned therein : the person
accepting a tender will be examined as a witness, and if he is not on bail he will be
detained in custody ; the Magistrate tendering pardon will record his reasons for so
doing ; the Magistrate who has tendered pardon and examined such person will not
try the case himself, although it may be triable by him (section 337). The Court
before judgment is passed may tender itself or order the committing Magistrate or
the District Magistrate to tender a pardon (section 338). When the person to whom
a tender has been made has not complied with the conditions thereof, he may be
tried for the offence in respect of which the tender was made, or for any other offence
of which he appears to have been gn'lty ; the statement made by him may be given
in evidence against him, bnt no prosecution for the offence of giving false evidence
will be entertained without the sanction of the High Court (section 339).
Every accused person may of right be defended by a pleader. When the ac
cused person does not understand the proceedings, and if such enquiry results in a
commitment or such trial results in a conviction, the proceeding will be forwarded to
the High Court with a report of the circumstances, and that Court will pass a proper
order (section 341).
The Court may, at any stage of the enquiry or trial, put such questions to the
accused as the Court consider* necessary for the purpose of explaining circumstances
appearing in evidence and generally on the case after the witnesses for the prosecu
tion have been examined and before the accused is called on for his defence. The
accused will not be punished for his refusal or for giving false evidence. Such
answers will be taken into consideration in the enquiry and put in evidcuce for or
against him (section 342). No influence will be used to induce disclosures by
accused (section 343). The Court may postpone or adjourn the case for certain
reasons, but a Magistrate will not remand the accused for more than fifteen days
(section 344).
The following offences under the Penal Court may be compounded:—
(1) Uttering words, etc., with deliberate fin) Adultery, secM-n 497. Penal Code.
intent to wound the religions feelings of (11) Enticing or taking away or dc*aining
any person, section 298, Penal Code. with a crimiral intent a married wo
(2) Causing hurt, sections 323, 334, Penal man, section 498, Penal Code.
Cote. (12) Defamation, secti n 600, Penal Code.
(3) Wrongfully restraining or confining any (13; Printing or engraving matter knowing
person, sections 341,342, Per al Code. it t> be defamatory, section 501, Penal
(t) Assault or use of criminal force, sections Code.
3.">2 351, 358. Penal Code. (14) Sale of printed or engraved substance
(.">) Unlawful compulsory 'abour, section 374, containi'g defamatory matter, know
Penal Code. ing it to contain such matter section
(li) Mischief, when the only loss or damage 502, Penal Code.
caused is loss or damage to a private (1*>) Insult intended to provoke a breach if
person sections 42fi, 427, Penal Code. the p'-ace. section 504, Penal Code.
(1) Criminal trespass, section 447, Penal Code. (16) Criminal intimidation except whrn the
(8) House-trespass, Bection 448, renal Code. offence is punishable with imprison
(!)) diurnal breach cf contract of service, ment for seven years, section 80S,
sections 490, 491, 492, Penal Code. Penal Code.
xkxiv Introduction.
The following offences may be compounded with the permission of the Court:—
Offences under sections 324, 325, 335, 337, 338 of the Penal Code.
When an offence is ccnipoundable, the abetment of such offence or an attempt
to commit such offence may be compounded in like manner ; and when a person com
petent to compound is a minor and an idiot or a lunatic, any person competent to
contract on his behalf may compound such offence. But when the accused has been
committed or convicted and an appeal is pending, no composition will be allowed
without the leave of such Court. The effect of a composition is that of an acquittal
(Section 315).
When it appears to a Magistrate that the case is one which ought to be tried
or committed for trial by some other Magistrate, he will stay proceedings and submit
the case with a brief report to the Magistrate to whom he is subordinate, or to an
other Magistrate as the District Magistrate may direct (section 346). When it
appears to the Magistrate that the case is one which ought to be tried by the
Court of Session or High Court, he will stop further proceedings, and, if he is
so empowered, commit the accused ; but if not so empowered, he will submit the
case to the Magistrate to whom he is subordinate or to the District Magistrate (sec
tion 347). If one who has previously been convicted for an offence against coinage,
stamp law, or property punishable with imprisonment for three years or upwards, be
again accused under the same head of an offence punishable with imprisonment for
a term of three years or upwards, he will be committed to the Court of Session or
High Court, unless the Magistrate is of opinion that he can himself pass an
adequate sentence : if the District Magistrate has been invested with power under
section 30, the case may be transferred to him (section 348).
When a Magistrate with second or third-class powers considers that he cannot
adequately punish the accused, or that the accused ought to be required to execute
a bond to keep the peace, he will forward, him together with his opinion and proceed
ings to the District Magistrate or Sub-Divisional Magistrate to whom he is
subordinate, and such Magistrate will pass judgment, sentence or order in the case
as he thinks fit (section 349).
When any Magistrate after recording the whole or part of the evidence ceases
to exercise jurisdiction, the Magistrate who succeeds him may act on the evidence so
recorded, or partly so recorded and partly recorded by himself, or re-summon the wit
nesses and recommence the enquiry or trial : but the accused may demand that the
witnesses or any of them be re-summoned and re-heard. The High Court or District
Magistrate, whether there be an appeal or not, can set aside a conviction so passed
if such Court or Magistrate is of opinion that the accused has been materially
prejudiced, and order a new enquiry or trial section 850).
Any person attending a Criminal Court, although not under arrest or sum
moned, may be detained for examination for any offence which may appear to have
been committed, and may be proceeded against as though he was arrested or sum
moned ; when the detention takes place in the course of an enquiry under Chapter
XVIII, or after a trial has begun, the proceeding as against such person will be
commenced afresh and witnesses re-heard (section 851).
The place in which a Criminal Court is held will be deemed an open Court in
which the public generally have access, but the Judge or Magistrate may at any
stage of enquiry or trial order that the public generally or any particular person
may not have access (section 352).
Introduction. XXXV
CHAPTER XXV treats of the mode of taking and recording evi

dence in enquiries and trials and consists of 13 sections. When not other
wise provided all the evidence will be taken in the presence of the accused, and
when his attendance is dispensed with, in that of his pleader (section 353). In
the undermentioned cases the Magistrate will make a memorandum of the Rub-
stance of the evidence in his own handwriting and will sign the same ; if he be un
able to do so, he will record his reason, and will cause such memorandum to be
taken from his dictation in open Court : —
(1) In a'l summons-cases. not exceed Rs. 50.
(2) In case relating to weights an«l mea (7) Mischief under section 427. Penal Code.
sures. (8) House-trespass under section 448, Penal
(3) Incases of theft. Code.
f<) Theft when value does no1 exceed Rs (U) Insult to provoke breach of the peace
60 under sections 37!>, 380, or 381, or criminal intimiilation.
Penal Corle. (10) Abetment of the above offences or at
(5) Receiving or retaining sto'cu property tempt to commit the same.
wheu the value doe* not exec A Rs. (11) All cases of pub'.ic nuisance.
50. (12) Cases of forfeiture ■ f bonds, if Dot in
(fl) Assisliug in concealment or disiosa' of course of trial (section P55).
Btoleu properly when the value does
In all other cases before a Court of Session or Magistrate, the evidence of each
witness will be taken down in the language of the Court by the Magistrate or the
Sessions Judge or in his presence, hearing, direction and superintendence, and will
be signed by the Court or the Magistrate : if the evidence be given in English such
Court or Magistrate may take it down with his own hand. When evidence is not
taken by the Court or the Magistrate, a memorandum will be made of the substance
of the deposition ; when prevented from any cause, the reason of the inability
must be recorded (section 356).
The Local Government may direct that the evidence before any Court or
Magistrate may be taken down by the Sessions Judge or Magistrate with his own
hand and in his mother-tongue, unless prevented from so doing for sufficient reasons,
which must be recorded. The evidence will be signed by the Judge or Magistrate
(section 357).
The evidence will be taken down in the form of a narrative, but the Judge or
Magistrate may take down or cause to be taken down any particular question and
answ'er (section 35'.)). The evidence will be read over to the witness and will, if
necessary, be corrected ; but if the correctness of any part of the evidence be ob
jected to, the Judge or Magistrate instead of correcting it may make a memorandum
of the objection, and will add such remarks as he thinks fit. If the evidence be taken
down in a different language to that in which it has been given, it will be inter
preted to the witne s (section 360) ; if not understood by the accused, it will be
interpreted to him ; if he appears by a pleader and the language is not understood
by such pleader, it will be interpreted to the pleader ; when documents are put in
evidence, such portion as appears necessary will be interpreted (section 361). The
Judge or the Magistrate will also record remarks as to the demeanour of the
witness whilst under examination (section 363).
The examination of the accused will contain every question put to him and
every answer given by him in full in the language in which he is examined,
or if not practicable, in the language of the Court or in English, and it will be read
and explained to him, and -he' will be at liberty to explain or add to it ; when the
whole is made what he declares to b." the truth, it will be signed by him, and the
xxxvi Introduction.
Judge or Magistrate will certify that it was taken in his presence and hearing, and
contains a full and true account of the statement made by the accused. In case
when the examination is not recorded by the Judge or the Magistrate, the latter
is bound to make a memorandum in the language of the Court or in English, such
memorandum to be written and signed by the Judge or Magistrate, who in case
of inability must record the reason therefor section 364). The High Court may
by general rule prescribe the manner in which the evidence will be taken down by
that Court (section 365).
CHAPTER XXVI treats Of judgments and consists of 8 sections.
Subject to the provisions of section 263 (summary trials where no appeal lies) and
section 310, clause (b) (procedure in case of previous conviction when the accused
person pleads guilty or is convicted of the subsequent offence), the judgment of
the Criminal Courts of original jurisdiction will be pronounced, or the substance
thereof explained, in open Court in the language of the Court or the language
which the accused or his pleader understands (section 366). The judgment
will be written in the language of the Court or in English, and will contain
the point or points for determination, the decision thereon and the reason
therefor ; it will be dated and signed by the presiding officer in open Court,
it will specify the offence and the section of the Penal Code or other law,
and the punishment to which he is sentenced. Judgment will be in the alternative
when it is doubtful under which of the two sections or part of the same section the
offence falls. If it be a judgment of acquittal it will state the offence of which
the accused is acquitted. If convicted of an offence punishable with death, and
the Court sentences the accused to any punishment other than death, it must
state the reasons why that sentence was not passed. In trials by jury the Court
need not record a judgment, but only the heads of the charge to the jury (section
367) : when the sentence is of death, it will direct that the person so sentenced be
hanged by the neck till he be dead : no sentence of transportation will specify the
place (section 368) : no Court other than a High Court will alter or review its
judgment except to correct a clerical error (section 369). The procedure for re
cording judgment by Presidency Magistrates is described in section 370.
On application, copy of the judgment will be given to the accused without
delay free of cost, and in trials by jury, a copy of the heads of charge to the
jury. A person sentenced to death will be informed of the time within which
his appeal should be preferred (section 871).
CHAPTER XXVII.—Treats of the submission of sentences for
confirmation and consis ts of 7 sections. All sentences of death passed by a
Court of Session will be submitted to the High Court for confirmation: the High
Court may direct further enquiry or require further evidence to be taken. The
High Court has power to confirm the sentence or to annul the conviction. Con
firmation of sentence or any new sentence or order will be signed by two or more
Judges. When there is a difference of opinion, such opinion will be laid before
another Judge, who after such examination or hearing will deliver his opinion, and
the judgment or order will follow such opinion (sections 374—379).
Subordinate Magistrates will submit their proceedings under section f>62 (relat
ing to first offenders) to a Magistrate of the first class or to the Sub-divisional
Magistrate, who will pass such sentence or make snob order thereon as if the case
had been originally heard by him, or may order further enquiry and take fresh
evidence (section 380).
Introduction. xxxvii
CHAPTER XXVIII treats Of execution and consists of 20 sections.

On receipt of the order of confirmation of sentence of death or such other order of
the High Court, the Court of Session will cause it to be carried into effect (section
381). If, however, a pregnant woman is sentenced to death, the High Court will
order the execution to be postponed or, if it thinks fit, commute the sentence to
one of transportation for life (section 382). When the accused is sentenced to
transportation or imprisonment, the Court passing the sentence will forward a
warrant to the jail, or will forward him to the jail with the warrant (section 383).
The warrant will be directed to the officer in charge of the jail (section 384).
When an offender is sentenced to a fine, the Court may issue a warrant for
the levy of the amount by distress and sale of moveable property, although the
sentence directs the offender to imprisonment in lieu of fine (section 386). The
warrant may be executed within the jurisdiction of the Court or without such
limits, if endorsed by the District Magistrate (section 387). When an offender is
sentenced to a fine only and in default to imprisonment, the Court may suspend
the sentence of imprisonment on the offender's executing a bond with or without
sureties for his appearance on the day appointed for the return of the warrant,
such day not to be more than fifteen days from date of executing the bond, and if
the fine is not realized, the Court may direct the sentence of imprisonment to be
carried out (section 388).
Warrant for the execution of any sentence may be issued by the Judge or
Magistrate who passed it or by his successor in office (section 389).
Execution of the sentence of whipping, in appealable cases, in addition to
imprisonment, will not be carried out until fifteen days from date of sentence, or if
an appeal be made, until the sentence is confirmed. It will be inflicted before the
officer in charge of the jail unless the Magistrate otherwise directs. When the
accused is sentenced to whipping in addition to imprisonment, such imprisonment
must not be of less duration than three months (section 891).
Whipping will be inflicted to a person of over sixteen years of age with a
light rattan of not less than half an inch in diameter, and in such mode, &c, as the
Local Government may direct ; in case of a person under sixteen years of age, in
the way of school- discipline with a light rattan ; in no case will it exceed thirty
stripes (section 392). It will not be inflicted by instalments, nor will the follow
ing persons be punished with whipping :—
1. Females.
2. Males sentenced to death, transportation, penal servitude, or imprison
ment of more than five years.
3. Males of more than forty-fivo years of age (section 393).
It is not to be inflicted unless a medical officer certifies, or it appears to the
Magistrate that the offender is in a fit state of health to undergo the punishment.
If during the execution of the sentence the medical officer certifies or it appears to
the Magistrate that the offender is not in a fit state of health, the remainder of the
sentence will be finally stopped (section 394). The Court may remit the remain
ing sentence, or in lieu thereof, sentence the offender to a term of imprisonment
not exceeding twelve months ; but it does not authorise the Court to inflict im
prisonment to a term exceeding that to which the accused is liable by law or which
such Court is competent to inflict (section 395).
xxxviii Introduction.
As to sentences on an escaped convict : if the first sentence was of death, or

fine, or whipping, it will take effect immediately ; if of imprisonment, penal
servitude or transportation, if the new sentence is severer in its kind than the
sentence from which he escaped, the new sentence will be carried out immediately,
and if it be not severer, then after the prisoner has undergone his first sentence.
A sentence of transportation or- penal servitude will be deemed severer than im
prisonment ; a sentence of imprisonment with solitary confinement will be deemed
severer than imprisonment of the same description without solitary confinement ;
a sentence of rigorous imprisonment will be deemed severer than simple imprison
ment with or without solitary confinement (section 396).
When an accused is already undergoing a sentenee, the subsequent sentence
will commence after the expiration of the previous sentence, but a Court may in its
discretion direct that the new sentence will commence immediately (section 397).
Effect will not be given to the award of imprisonment in default of payment of
fine until the person has undergone the further sentence (section 398).
When any person under the age of fifteen years is sentenced, the Court may
direct that such person will, instead of being imprisoned in a criminal jail, be con
fined in a Reformatory School established by the Local Government (section 399).
After a warrant is fnlly executed it will be returned to the Court which issued
it (section 400).
CHAPTER XXIX treats of suspensions, remissions and commu
tations of sentences and consists of 2 sections. The Governor-General in Council
or the Local Government may at any time, with or without condition, suspend the
execution of a sentence passed on any person, or remit the whole or any part of such
punishment. When an application is made for such suspension or remission, the Go
vernor-General in Council or Local Government may require the presiding Judge of
the Court before which the conviction was had or confirmed to s'ate, with his reasons
therefor, his opinion whether the application may be granted or refused. When
the condition on which a sentence has been suspended or remitted is not fulfilled,
the suspension or remission may be cancelled ; thereupon, if the person is at large,
he will be arrested by any police-officer without warrant and remanded to undergo
the unexpired portion of the sentence. The conditions on which the sentence is
suspended or remitted may be one to be fulfilled by the person in whose favour the
sentence is suspended or remitted, or one independent of his will. This provision
will not be deemed to interfere with the right of Her Majesty to grant pardons,
reprieves, respites or remissions of punishment. The Governor-General in Council
or Local Government may, by general rule or special orders, give directions for the
suspension of sentences and the conditions on which petitions should be presented
and dealt with (section 401). The Governor-General in Council or the Local Go
vernment may, without the consent of the person sentenced, commute any one of the
following sentences for any other mentioned after it: death, transportation, penal
servitude, rigorous imprisonment for a term not exceeding that to which he might
have been sentenced, simple imprisonment for a like term, fine (section 402).
CHAPTER XXX treats of previous acquittals or convictions and

consists of one section. A person once convictedor acquitted for an offence will, while
such conviction or acquittal remains in force, not be liable to be tried again for the
same offence, nor for any other offence for which a different charge might have been
Introduction.
made ; but he may be tried for any distinct offence for which a separate charge might
have been made : and a person may be fried for any act causing consequences which
together with such act constituted a different offence from that of which lie was con
victed. A person acquitted or convicted of any offence, notwithstanding such ac
quittal or conviction, may be subsequently charged with and tried for any other
offence constituted by the same acts which he may have committed, if the Court by
which he was first tried was not competent to try the offence for which he is sub
sequently charged (section 403).
VII. -OF APPEALS, REFERENCE AND REVISION.

PART VII deals with appeals, reference and revision and consists
of two chapters with 139 sections.
CHAPTER XXXI treats of appeals and consists of 28 sections. It declares
that no appeal lies unless so provided by this Code or any other law for the time
being in force (section 4.04). It allows appeals from order rejecting application for
restoration of attached property to the Court to which appeals ordinarily lie from
such Court (section 405) ; from order requiring security for good behaviour to the
District Magistrate (section 40G); from sentences of Magistrates of the second and
third-class, to the District Magistrate (section 407). The District Magistrate may
transfer appeals to first-class Magistrates empowered by the Local Government to
hear such appeals (section 407). Appeals from sentences of Assistant Sessions Judges
and of Magistrates of the first-class lie to the Court of Session ; but when the sen
tence is passed by an Assistant Sessions Judge or a Magistrate specially empowered,
for a term exceeding four years, or any sentence of transportation, the appeal will
lie to the High Court. Every European British subject convicted may appeal, at
his option, to the High Court or Court of Session (section 408). Appeals are
allowed to the High Court from conviction by Sessions Judge or Additional Sessions
Judge (section 410). Appeal from a sentence by a Presidency Magistrate, when the
sentence is for a term exceeding six months or of fine exceeding 200 rupees, lies to the
High Court (section 411 . There is no appeal, from conviction on a plea of guilty,
except to the extent or legality of the sentence (section 412); neither is there an
appeal in cases in which a Court of Session or Magistrate of first-class passes a
sentence of imprisonment only not exceeding one month, or of fine only not exceed
ing fifty rupees, or of whipping only (section 413), nor from a summary trial from a
sentence of imprisonment only, or of fine only not exceeding two hundred rupees, or
of whipping only (section 414). No sentence not otherwise appealable will be open
to appeal merely on the ground that the person convicted is ordered to find security
to keep the peace (section 415), but this does not apply to European British sub
jects, who have aright of appeal under Chapter XXXII of the Code (section
416). Government has a right of appeal to the High Court from an original or
appellate order of acquittal (section 417).
An appeal will lie on matters of fact as well as on matters of law ; but in cases
where the trial was by a jury, the appeal will lie on a matter of law only. The
alleged severity of a seutence will be deemed to be a matter of law (section 418).
The petition of appeal will be accompanied by a copy of the judgment or
order appealed against, and in cases tried by jury, a copy of the heads of the charge
recorded (section 419). If the appellant is in jail his petition of appeal will be for
warded by the officer in charge of the jail (section 420.) If the appellate Court on
Introduction.
perusal considers that there is not sufficient ground for interfering, it will reject it
summarily, provided that the appellant or his pleader has had an opportunity of
being heard in support of the same (section 421). On admission of appeal notice
of the time and place of the hearing will be given to the appellant or his pleader and
to the Government pleader, and in case of Government appeal a like notice will be
given to the accused (section 422).
The appellate Court in disposing of the appeal will, if it consider that there is
not sufficient ground for interfering, dismiss it ; or may — (i) on an appeal from order
of acquittal, reverse such order and direct further enquiry to be made, or the accused
to be re-tried, or committed for trial, or find him guilty and pass sentence on him ;
(ii) on appeal from conviction, reverse the finding and sentence and acquit or dis
charge the accused, or order re-trial by a competent Court or commitment for trial
or alter the finding, maintain the sentence, or reduce the sentence, or alter the nature
of the sentence, but not so as to enhance the same ; (iii) in an appeal from any other
order, alter or reverse such order, make any consequential or incidental order that
may be just or proper. But the verdict of a jury cannot be altered or revised unless
such verdict is erroneous owing to misdirection or misunderstanding of law on the
part of the jury (section 428).
The rule contained in Chapter XXVI as to judgment of a Criminal Court of
original jurisdiction will apply to the judgment of the Appellate Court other than
the High Court (section 424).
The order of High Court passed on appeal will be certified to the lower Court
(section 425).
The appellate Court may, for reasons to be recorded, order that the sentence of
order appealed against be suspended, and, if the accused is in jail, that he be released
on bail or on his own bond. The High Court may exercise the same powers in the
case of an appeal by a person convicted by a subordinate Court (section 426).
On an appeal by the Government from acquittal the High Court may issue a
warrant for the arrest of the accused (section 427).
In dealing with an appeal the Appellate Court may, if it thinks necessary, take
additional evidence itself or direct it to be taken, — the accused or his pleader may
be present, but such evideuce will not be taken in the presence of jurors or assessors
(section 428).
When the Judges composing the Court of appeal are equally divided in their
opinions, the case will be placed before another Judge of the same Court, and the
judgment will follow tbe opinion of such other Judge (section 429).
The judgment and order passed on appeal will be final, except in the case pro
vided for by section 417 (section 480) ; every appeal by Government under section
417 from order of acquittal will abate on the death of the accused, and every other
appeal will abate on the death of the appellant (section 481).
CHAPTER XXXII treats of reference and revision and consists of ll
sections. It provides for references by Presidency Magistrates to the High Court
(section 438). Reference may also be made by a single Judge of the High Court to
the whole Court of any question of law which may arise in the course of the trial,
and such Judge may remand the accused to jail or admit him to bail pending the
decision on such reference (section 434). It also provides for the High Court,
Sessions Judge, District Magistrate or any Sub-Divisional MagUtrate empowered by
Introduction. xli
Government to call for and examine the record of any proceeding before any sub
ordinate Court for the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order and as to the regularity of any
proceedings. If a Sub-Divisional Magistrate considers such finding, sentence or
order illegal or improper, or that any proceeding is irregular, he will forward the re
cord with his remarks to the District Magistrate (section 435). When on examin
ing the record the Sessions Judge or District Magistrate considers the case triable
exclusively by the Sessions Judge and the accused person improperly discharged, it
or he will order the arrest of the accused and his commitment for trial, provided that
the accused has had an opportunity of showing cause against such order. But if
the Sessions Judge or Magistrate thinks that some other offence has been committed,
he may order the subordinate Magistrate to enquire into such offence (section 43G).
On examining such record the High Court or Sessions Judge may direct the District
Magistrate to make further enquiry into any complaint which has been dismissed
under section 203, or in the case of discharge or release by an officer in charge of a
police-station under section 1G9; and the District Magistrate may himself make
or direct a subordinate Magistrate to make further enquiry (section 437). The
Sessions Judge or District Magistrate may, on such examination of the record, report
for the orders of the High Court the result of the examination, and if it carries a re
commendation that the sentence be reversed, may order such sentence to be suspended
(section 438). The powers of revision given to the High Court extends to the powers
of an Appellate Court under sections 195, 423, 426, 427, 428, and that under
section 338 to the enhancing of sentence. In case when the Court is equally
divided the provisions of section 429 will apply. The accused will be allowed an
opportunity of being heard either personally or by pleader. The Court will not
inflict a greater punishment than might have been inflicted for such offence by a
Presidency Magistrate or a Magistrate of the first class. And it is not authorised
to convert a finding of acquittal into one of conviction.
When an appeal is allowed and not brought, no proceeding in the way of revision
will be entertained (section 439).
VIII.—SPECIAL PROCEEDINGS.
PART VIII deals with special proceedings and consists of 5 chapters
with 49 sections.
CHAPTER XXXIII treats of criminal proceedings against
Europeans and Americans and consists of 21 sections. It declares that no
Magistrate who is not a Justice of the Peace (except a District Magistrate or Pre
sidency Magistrate) and a Magistrate of the first-class and an European British
subject, will enquire into and try any charge against an European British subject
(section 443). And no Judge piesiding in a Court of Session, except the Sessions
Judge, will exercise jurisdiction over an European British subject, unless he himself is
an European British subject : and no Assistant Sessions Judge unless he has held
office for at least three years and has been specially empowered by the Local Govern
ment (section 444). But nothing is to prevent any Magistrate from taking cog
nizance of an offence committed by an European British subject provided the pro
cess for compelling the appearance of the accused is made returnable before a
Magistrate having jurisdiction (section 445). The sentences which may be passed by
Magistrates are : — (i) by District Magistrate —six months' imprisonment, fine to
Ks. 2,000. or both; (ii) by other Magistrates—three months' imprisonment, fine
to Rs. 1,000, or both (section 446). When a Magistrate cannot adequately punish
xlii Introduction.
and the offence is not punishable with death or transportation for life, he will commit
the accnsed to the Court of Se^si >n, and in the case of a Presidency Magistrate, to
the High Court. But when the offence committed is punishable with death or with
transportation for life, the commitment will be to the High Court (section 447).
When the person coin mi tted to the High Court is charged with several offences, of
which one is punishable with death or transportation for life, and the High Court
considers that the accused should not bj tried for the offence punishable with death
or transportation, the Higli Court may nevertheless try him for the other offences
(section 448). The sentence which a Court of Session can pass is, imprisonment for
one year, or fine, or both ; but if he thinks the sentence he can pass is inadequate,
he will transfer the case to the High Court (section 449).
In trials before High Court or Court of Session and before the first juror is called
and accepted, or the first assessor appointed the accused prays for a trial by a mixed
jury, the trial will be held by a jury of which not less than half the number is to be
Europeans or Americans or both Europeans ond Americans (section 450). In trials
before Magistrates the accused can claim trill by jury. The sani; procedure as in
Sessions Court is to be applicable (section 451). When a Nativj subject is accused
jointly with a European subject, such subject may b3 tried together, provided
that if the European British subject require? to be tried by a mixed jury or a mixed
set of assessors, such Native subject may claim to be tried separately under the pro
visions of Chapter XXIII (section 152).
Persons claiming to be European British subject will have to prove the truth of
the claim. The finding against the accused's contention may form a ground of
appeal on conviction (section 453). If the accused does no; claim the right of an
European British subject before the Magistrate, anil if committed, before the Sessions
Court, he will be held to have relinquished his right and cannot assert it at any sub
sequent stage of the case (section 454). If a person who is not an European Bri
tish subject is tried under tliis chapter and does not object, the enquiry, commitment,
trial or sentence will not be invalid (section 455).
An European British subject unlawfully detained may apply, or any person on
hie behalf may apply, to the High Court for an order directing the person detain
ing him to bring him before the High Court, to abide such further order as may be
passed (sections 450 and 457).
Territorial jurisdiction of the High Court extends to the local limits of its criminal
jurisdiction, and to such other limits which the Governor-General may direct (section
458).
Application of Acts conferring jurisdiction on Magistrates or Courts of Session
will apply to European British subjects (section 459).
Jury for the trial of an European (not being an European British subject) or
American will be of half the number of Europeans or Americans (section 4u'0).
Summoning and empannelling jurors under sections 450, 451 or4fil) (section 4G2).
Conduct of criminal proceedings against European British subjects, etc., unless
otherwise provided, will be conducted according to the provisions of this Code (sec
tion 4C3).
CHAPTER XXXIV treats of lunatics and consists of 12 sections.
When a Magistrate holding an enquiry or trial has reason to believe that the accused
is of unsound mind ho will cause the person, after recording evidence, to be examined
by the Civil Surgeon, and will thereupon examine the Civil Surgeon and reduce it to
Introduction, xliii
writing. If the Magistrate is of opinion that the accused it of unsound mind he will
postpone further proceeding (section 464). In trials before a Court of Session the jury
or the Court with the aid of assessors will first try the fact of unsoundness of mind
and, if satisfied, will pass judgment accordingly ; the Court may examine witnesses
and take such evidence as it may think fit (section 465). When the accused person
is found to be of unsound mind and incapable of making his defence, the Magistrate
or Court will, if the offence is bailable, release him on sufficient security being
given that he will be properly taken care of, and for his appearance when required
before the Magistrate or Court or such otticeras the Magistrate or Court may appoint
in this behalf ; if the case be one in which bail may not be taken, or if sufficient
security be not given, the Magistrate or Court will report the case for the orders of
the Local Government, and the Local Government may order the accused to be
confined in a lunatic asylum (section 466). On resuming the enquiry or trial, if
the Magistrate or Court considers the accused capable of making his defence, the
enquiry or defence will proceed, but if still incapable, the Court or Magistrate will
proceed as above (section 468). If the Magistrate finds the accused of sound mind
at the time of the enquiry or trial, and finds that he committed an act which, if com
mitted while of sound mind would be an offence, but by reason of the unsoundness
of mind the accused was incapable of knowing the nature of the act, or that it was
wrong or contrary to law, the Magistrate will proceed with the case, and if the
accused ought to be committed to the Court of Session or High Court, will send him
for trial before the said Court (section 460). When the accused is acquitted on the
ground of unsoundness of mind at the time of committing the deed, the finding
will state specifically whether he committed the act or not (section 470) ; and when
acquitted on snch ground he will be kept in safe custody, and the Court or Magis
trate will report the case for the orders of the Government. The Local Government
may order such person to be confined in a lunatic asylum, jail, or other suitable
place of custody (section 471).
Sections 471 (8) and (4 \ 472,473, 474 and 475 treat of the following
matters :—
Section 471 (3) ; the power of the Governor-General in Council to order
criminal lunatics confined by order of Local Government to be removed from one
province to another.
Section 471 (4 ; the power of the Local Government to relieve the Inspector-
General of certain functions.
Sections 472 ; lunatic prisoner to be visited by the Inspector-General.
Sections 473 ; procedure where lunatic prisoner is reported capable of making
his defence.
Section 474 ; procedure when lunatic confined under section 466 or 471 is
declared fit to be discharged.
Section 475 ; delivery of the lunatic to the care of relatives.
CHAPTER XXXV treats of proceedings in case of certain
offences affecting the administration of justice and consists of 12
sections. It deals with cases sent by Civil, Criminal or Revenue Courts for
enquiry or trial of offences falling under section 19") (contempt of lawful authority
of public servants), and declares that such proceedings will not be questioned by way
of revision (section 476). If the offence is committed in a Court of Session the
Court may try the offender itself upon its own charge (section 477). When the
xliv Introduction.
offence is triable exclusively by the High Court or the Court of Session, the Civil or
Revenue Court may, instead of sending the case to a Magistrate for enquiry, itself
complete the enquiry and commit the accused person to take his trial before the High
Court or the Court of Session (section 478), or send the record of the case to a Ma
gistrate authorised to commit for trial, and such Magistrate will bring the case
before the High Court or the Court of Session (section 479).
In certain specified cases (offences described in sections 174, 175, 178, 179, 180
and 228 of the Penal Code) the Civil, Criminal or Revenue Court has the power to
sentence the offender to a fine of Rs. 200 and, in default, to simple imprisonment
up to one month ; but if the Court considers that the sentence it can award is in
adequate, it will forward the case to a Magistrate having jurisdiction (sections 480—■
482). A Registrar or Sub-Registrar under Act No. Ill of 1877 is not a Civil
Court unless the Local Government so ordains (section 483). The Court has power,
on submission of apology, to discharge the offender or remit the punishment (sec
tion 484).
If any witness or person called to produce a document before a Court refuses
to answer such questions as are put to him or to produce any document in his posses
sion or power, and does not offer any reasonable excuse for such refusal, the Courtmay
sentence him to simple imprisonment, or by warrant commit him to the custody of
an officer of the Court for a period of seven days, unless in the meantime the
person consents to be examined and to answer or to produce the document ; if he
'persists in his refusal, he may be dealt with under sections 480 or 482 (section 485).
A person sentenced as above may appeal to the Court to which decrees or
orders made in such Court are ordinarily appealable ; from a sentence passed by a
Presidency Small Cause Court he may appeal to the High Court ; and from a
Court of Small Causes in the Mofussil, to the Court of the Sessions Judge (section
486). No Judge of a Criminal Court, except the Judge of a High Court, the Re
corder of Rangoon and the Presidency Magistrates, can try offences referred to in
section 195 when committed before himself, but must commit such offenders to
the Court of Session (section 487).
CHAPTER XXXVI treats of the maintenance of wives and
Children and consists of 3 sections. If a person with sufficient means neglects
or refuses to maintain his wife or his legitimate or illegitimate child unable to
maintain itself the Magistrate, on proof of such neglect or refusal, will order a
monthly allowance for the maintenance of the wife or such child, the monthly rate
not exceeding fifty rupees on the whole. Such allowance is payable from date of
the order or, if so directed, from the date of the complaint. Enforcement of the
order is to be made by levying the amount in the manner prescribed for levying
fines and by imprisonment to one month or until payment. If the husband offers to
maintain his wife on condition of her living with him, the Magistrate may consider
any ground of refusal on the part of the wife and pass fit orders. No wife is entit
led to maintenance if she is living in adulter}', or without sufficient reason refuses to
live with her husband. The evidence under this chapter will be taken in the pre
sence of the husband or of his pleader, provided that if the husband is avoiding
service of the summons or wilfully neglects to attend the Court, the Magistrate will
determine ex parte, but such order may be set aside on good cause being shown
within three months. On proof of a change of circumstances the Magistrate may
alter the allowance, but if he proceeds to increase the amount, fifty rupees on the
Introduction. xlv
whole will not be exceeded. The enforcement of the order of maintenance may be
made by any Magistrate of the place where the person against whom it is made
may be (sections 488-190).
CHAPTER XXXVII treats of directions of the nature of habeas
corpus and consists of one section. It gives power to the High Courts of Fort,
William, Madras and Bombay to issue directions of the nature of a habeas corpus
and to frame rules to regulate the procedure thereof (section 491).
IX.-SUPPLEMENTARY PROVISIONS.
PART IX, as the title denotes, deals with supplementary pro
visions and consists of 9 chapters with G7 sections.
CHAPTER XXXVIII treats of the Public Prosecutor and consists of

4 sections. It gives the Government power to appoint a Public Prosecutor. The
Magistrate of a district and, subject to his control, a subordinate Magistrate may
appoint, in the absence of the Public Prosecutor, any other person not being an
officer of police below the rank of Assistant District Superintendent to be the
Public Prosecutor. The Public Prosecutor may plead in all cases which come under
his charge without any written authority, and pleaders privately instructed will act
under his directions. The Public Prosecutor may, with the consent of the Court,
withdraw from the prosecution of any person in cases tried by jury before the re
turn of the verdict and in other cases before the judgment is pronounced. In case
where the withdrawal is made before a charge is framed, the accused will be dis
charged ; if made after a charge has been framed, or where no charge is required,
the accused will bo acquitted. When the prosecution is conducted by a person other
than a law officer of Government the sa-ne rule will apply as regards withdrawal ; but
no officer of police who has taken part in the investigation will be permitted to con
duct the prosecution (sections 492—495).
CHAPTER XXXIX treats of bail and consists of 7 sections. It directs

bail to be taken in all cases which is not a non-bailable offence, and the Court
may, instead of taking bail, enlarge the accused on his executing a bond without
sureties. A person accused of a non-bailable offence may be admitted to bail,
but will not be so released if there be reasonable grounds for believing that he
has been guilty of the offence of which ho is charged ; but if at any stage of the
investigation, enquiry or trial the reasonable ground is not believed, but there appear
sufficient grounds for further enquiry, the accused will, pending such trial, be re
leased on bail, but may subsequently be arrested. The High Court or Court of
Session, whether there be an appeal on conviction or not, may direct any person
to be admitted to bail, or that the bail required by a police-officer or Magistrate
be reduced. After a bond is executed by accused or sureties the accused will be
released. If the first bond taken be subsequently found to be insufficient owing
to mistake, fraud or otherwise, an order will be passed for sufficient bail. The
sureties have a right to pray for the discharge of the bond, and on such applica
tion being given, a warrant of arrest of the accused will issue, and when brought
before the Court, the bond will be discharged, and the accused will be called upon
to find other sufficient sureties, and failing to find such securities, he will be com
mitted to custody (sections 496—502).
xlvi Introduction.
CHAPTER XL treats of commissions for the examination of wit

nesses and consists; of 6 sections. It directs that when, in the course of an en
quiry or trial or any other proceeding, it appears to a Presidency Magistrate, Dis
trict Magistrate or a Court of Session or the High Court that the examination of
a witness is necessary, and that li is attendance cannot be procured without an
unnecessary amount of delay, expense or inconvenience, such Magistrate or Court
may dispense with such attendance, and order a commission to any District Magis
trate. The parties may forward interrogatories in writing or may appear in person
or through a pleader, and may examine, cross-examine and re-examine the said
witness Subordinate Magistrates will apply to the District Magistrate, and the
District Magistrate may either issue a commission or reject the application. The
commission on its return will be read in evidence in the case by either party. In a
case in which a commission is issued the enquiry, trial or other proceeding may be
adjourned for a specified reasonably sufficient time (sections 503 —508).
CHAPTER XLI treats of special rules of evidence and consists of
4 sections. It directs that the evidence of a Civil Surgeon taken and attested by
a Magistrate, may be given in evidence in any enquiry, trial or other proceedings,
but the Court may summon and examine such witness. This provision will not
apply to evidence taken on commission. The report of the Chemical Examiner
may be used in evidence. Previous conviction or acquittal may be proved by an
extract certified by the officer having the custody of the records; or in case of con
viction, either by a certificate signed by the officer in charge of the jail in which the
punishment was inflicted, or by production of the warrant of commitment together
with evidence as to the identity of the accused persons so convicted or acquitted.
If the accused has absconded the Court may examine the witnesses produced
on behalf of the prosecution and record their deposition ; such deposition may
be given on the arrest of such absconded person in the enquiry or trial if the
deponent is dead or incapable of giving evidence or his attendance cannot be pro
cured without unreasonable delay, expense or inconvenience (sections 509 — 512).
CHAPTER XLII treats of provisions as to bonds and consists of 4
sections. It provides that when any person is required to execute a bond with or
without sureties, he may, except in case of a bond for good behaviour, deposit a
sum of money or Government Promissory Notes to such amount as the Court or
officer may fix. Procedure on forfeiture of bonds : —The Court will call on the
person bound by such bond to pay the penalty thereof or show cause ; if sufficient
cause be not shown, the Court may recover the same by issuing a warrant for the
attachment and sale of the moveable property, or his estate, if he be dead ; if such
penalty is not recovered on sale, the person will be liable to imprisonment for six
months ; the Court may remit any portion of the penalty. When the surety dies
before the bond is forfeited his estate will be discharged. All orders under this
chapter passed by any Magistrate will be appealable to the District Magistrate or
may be revised by him. The High Court or Court of Session may direct the levy
of the amount due on recognizances to appear and attend the said Courts
(sections 513—516).
CHAPTER XLIII treats of the disposal of property and consists
of 9 sections. It describes the procedure as to the disposal of documents and other
property produced, and regarding which an offence has been committed or which
has been used for the commission of an offence, or the title of which is doubtful or
in dispute. A High Court or Court of Session may direct that its order be carried
Introduction, xlvii
out by the District Magistrate, or it may direct the property to be delivered to the
District Magistrate or Sub-Divisional Magistrate. When an order lor the disposal
of such property has been made from which an appeal lies, such order, except in case
of live-stock or which is subject to natural decay, will not be carried out until the
period allowed for an appeal has passed, or until such appeal has been disposed of
(sections 517 and 518). The Court may order payment to innocent purchaser of
property, which has been the subject of theft, of a sum of money, out of any money
found in the possession of the convicted pe.sou on his arrest not exceeding the price
paid by such purchaser (section 519). It may order the destruction of libellous
matter, also of food, drink or medical preparation in respect of which the conviction
was had (section 521). It may restore possession of immoveable property which was
by criminal force taken possession of by convicted party, but no such order will pre
judice a civil action to establish a right to such property (sectiou 522). It may order
the detention of property suspected to have been stolen or found under circumstance
which create suspicion, and may issue a proclamation requiring any person who may
have any claim thereto to appeal and establish his claim within six months (section
523). If no person succeed in establishing a claim, and the person found in pos
session is unable to prove that it was legally acquired by him, it will be sold and the
proceeds deposited to Government. An appeal will lie from such order to the Court
empowered to hear ap, eals from sentences passed by such Court 'section 524). If
the property is subject to speedy and natural decay, the Magistrate may direct it to
be sold without waiting for the establishment of claim to it (section 525).
CHAPTER XLIV treats of the transfer of criminal cases and

consists of '6 sections. It gives the power to the High Court to transfer any case to
itselT or any other Criminal Court of equal or superior jurisdiction, and to lay down
the procedure to be observed in the trials of such cases. If the Public Prosecutor,
the comp'ainant or the accused notiBes to the Court, before the commencement of
the hearing, of his intention to make an application for the ransfer of the case or
appeal, the Court will, unless it be made for the purpose of delay or otherwise pre
judicing the course of justice, exercise the powers of postponement so as to afford a
reasonable time for the purpose. The Governor-General may direct transfer of any
particular criminal case or appeal from one High Court to another, or from any Cri
minal Court subordinate to one High Court to any other Court subordinate to any
other High Court. A District Magistrate or Sub-Divisional Magistrate may with
draw any case from any Magistrate subordinate to him, and either enquire into or try
such case himself or refer it to any other Magistrate. A District Magistrate may, if
authorised by the Local Government, withdraw from a Magistrate subordinate to
him such classes of cases as he thinks lit or particular classes of cases (section, 52G-
528).
CHAPTER XLV treats of irregular proceedings and consists of 10

sections. It declares the irregularities of Courts which do not vitiate proceedings
and irregularities which do. The former are : —
(1) to issue a search warrant under section 98,
(2) to order, under se tion 155, the police to investigate an offence,
1 8) to hold an inquest under section 17(i,
(4) to issue process, under section 18G. for the apprehension of a person
within the local limits of his jurisdiction who has committed an offence
outside such limits,
xlviii Introduction.
(5) to take cognizance of an offence under section 190, nub-section 1, clause

(a) or clause (b),
(6) to transfer a case under section 192,
(7) to tender a pardon under section 337 or section 338,
( 8) to sell property under section 524 or section 525, or
(9) to withdraw a case and try it himself under section 528 (section 529).
The irregularities which vitiate proceedings are. when a Court not invested
with the necessary powers:—
(1) attaches and sells property under section 88,
(2) issues a search warrant for a letter, parcel or other thing in the post-office
or a telegram in the telegraph department,
(3) demands security to keep the peace,
(4) demands security for good behaviour,
(5) discharges a person lawfully bound to be of good behaviour,
(6) cancels a bond to keep the peace,
(7) makes an order under section 133 as to a local nuisance,
(8) prohibits, under section 143, the repetition or continuance of a public
nuisance,
(9) issues an order under section 144,
(10) makes an order under Chapter XII,
(11) takes cognizance, under section 190, clause (<•), of an offence,
(12) passes a sentence, section 319, on proceedings recorded by another Ma
gistrate,
(13) calls, under section 435, for proceedings,
(14) makes an order for maintenance,
(15) revises, under section 515, an order passed under section 514,
(16) tries an offender,
(17) tries an offender summarily, or,
(18) decides an appeal (section 530).
No finding, sentence or order will be set aside merely on the ground that t!ie
enquiry, trial or proceeding took place in a wrong Sessions Division, District or Sub-
Division, unless it has occasioned failure of justice (section 531). Similarly, where a
Magistrate not having the jurisdiction to commit for trial toa Court of Session or the
High Court exercises such jurisdiction, such committal is not void unless the Court
considers that the accused was prejudiced thereby, or an objection was made on be
half of the accused ; it will then quash the commitment and direct a fresh enquiry
by a competent Magistrate (section 532). If a Court before which a confession is
made fails to record a memorandum required by section 1C4, or fails to record the
examination of the accused in the manner prescribed by section 3G4, the Court will
take evidence that such person duly made the statement recorded. It will then be
admitted unless the error has injured the accused (section 533). The error of not
asking any person whether he is a European British subject will not affect the validity
of any proceeding (section 534). Similarly, the not framing of a charge, unless it lias
caused a failure of justice, will be deemed invalid as affecting the finding or sentence
(section 535). Likewise, the trial by jury of an offence triable with assessors wil
not on that ground be invalid; also, trial with assessors of, offence triable by jury will
not for that reason be invalid, unless objection was taken before the Court recorded
its finding (section 53C).
Introduction. xlix
No finding or sentence of a competent Court will be reversible by reason of

error, omission or irregularity in the complaint, summons, warrant, charge, procla
mation, order, judgment or other proceedings, or of the want of sanction under sec
tion 195, or for the omission to revise any list of jurors or assessors, or for any
misdirection to a jury, unless such error, omission, irregularity, want of misdirection
has in fact occasioned a failure of justice (section 537). No distress will be illegal
nor the distrainer a trespasser for defect or want of form in proceeding (section 538).
CHAPTER XLVI treats of miscellaneous provisions and consists

of 26 sections ; it describes the miscellaneous proceedings under the Code. They
are:—
1. Courts and persons before whom affidavits may be sworn.
2. Power to summon material witness, or examine person present.
3. Power to appoint place of imprisonment. Removal to criminal jail of ac
cused or convicted persons who are in confinement in civil jail, and
their return to the civil jail.
4. Power of Presidency Magistrate to order prisoner in jail to be brought up
for examination.
5. Interpreter to be bound to interpret truthfully.
6. Expenses of complainants and witnesses.
7. Power of Court to pay expenses or compensation out of fine.
8. Payments to be taken into account in subsequent civil suit.
9. Moneys ordered to be paid recoverable as fines.
10. Copies of proceedings to be furnished on application.
11. Delivery to military authorities of persons liable to be tried by court-
martial. Apprehension of such persons.
12. Powers to police to seize property suspected to be stolen.
13. Powers of superior officers of police.
14. Power to compel restoration of abducted females.
15. Compensation to persons groundlessly given in charge in Presidency-
towns.
10. Power of Chartered High Courts to make rules for inspection of records
of subordinate Courts. Power of other High Courts to make rules
for other purposes.
17. Forms.
18. Case in which Judge or Magistrate is personally interested.
19. Practising pleader not to sit as Magistrate in certain Courts.
20. Power to decide language of Court.
21. Powers of Governor-General in Council and Local Governments exercis
able from time to time.
22. Officers concerned in sales not to purchase or bid for property.
23. Special provisions with respect to offence of rape by a husband.
24. New provision with regard to first offenders : these may be released under
certain circumstances.
25. Previously convicted offenders (sections 589—564).
CONTENTS.
Paoi.
ADDENDA Uii
THE CODE OF CRIMINAL PROCEDURE.
Part I.—Chapter i.- Preliminary, Repeal, Local Extent, Definitions, 1
Part II.—Constitution and Powers of Criminal Courts and Offices'
Chapter ii. - Of the constitution of Criminal Courts and offices... 8
„ iii.—Powers of Courts ... ... ... 13
Part III.— General Provisions
Chapter iv. Of Aid ami Information to the Magistrate, the Police,
and Persons making Arrests ... ... 28
,, v —Of Arrest, Escape and Retaking ... ••. 37
„ vi. - Of Processes to Compel Appearance ... ... 51
„ vii.—Of Processes to compel the production of Docu
ments and other Moveable property, and for
the Discovery of persons wrongfully confined... 65
Part IV.—Prevention of Offences.
Chapter viii.—Of Security for keeping the peace and for Good
Behaviour ... ... 75
„ ix —Unlawful Assemblies ... ... ••• 109
„ x.—Public Nuisances ... ... ... 112
„ xi.—Temporary Orders in Urgent Cases of Nuisance or
Apprehended Danger ... ... 134
„ xii. — Disputes as to Immoveable Property ... ... 143
„ a iii.—Preventive Action of the Police ... ... 169
Part V.— Information to the Police and their Powers to Investi
gation.
Chapter xiv.— ... ... ... ... 172
Part VI.— Proceedings in prosecutions.
Chapter xv.—Of the Jurisdiction of the Criminal Courts in
Inquiries and Trials ... ... 222
„ xvi. —Of Complaints to Magistrates ... ... 279
„ xvii.—Of the Commencement of Proceedings before
Magistrates ... 288
„ xviii — Of inquiry into cases triable by the Court of Ses
sion or High Court ... ... 289
„ xix.—Of the Charge ... ... 302
„ xx —Of the Trial of Summons-cases by Magistrates ... 333
„ xxi.—Of the Trial of Warrant-cases by Magistrates ... 337
„ xxii.—Of Summary Trials ... ... 344
„ xxiii.— Of Tri.ils before High Courts and CourU of
Sessions ... ... ... ... 351
„ xxiv.—General Provisions as to Inquiries and Trials... 391
„ xxv.—Of the Mode of Taking and Recording Evidence
in Inquiries and Trials ... .. 411
„ xxvi.—Of the Judgment ... ... 421
„ xxvii.-Of the Submission of Sentences for Confirmation. 427
lii Contents.
Page.
Chapter xxviii.—Of Execution 429
„ xxix.—Of Suspentions, Remissions and Commutations of
sentences 437
„ xxx.—Of Previous Acquittals or Convictions 439
Part ViI.—Of Appeal, Reference and Revision
Chapter xxxi.- Of Appeals 444
„ xxxii.—Of Reference and Revision 400
Pabt VIII.— Special Proceedings.
Chapter xxxiii.—Criminal Proceedings against Europeans and
Americans 488
„ xxxiv.—Lunatics 496
„ xxxv.—Proceedings in case of certain offences affecting the
Administration of Justice. 502
„ xxxvi.—Of the Maintenance of Wives and Children t>17
,, xxxvii.— Direction of the nature of a Habeas Corpus ... 527
Part IX.—Supplementary Provisions.
Chapter xxxviii.—Of the Public Prosecutor 529
xxxix.—Of Bail 532
xl.—Of Commissions for the Examination of
Witness ... ... ... ... 534
xli.—Special Rules of Evidence 540
xlii.—Provisions as to Bonds 544
xliii.—Of the Disposal of Property .047
xliv.—Of the Transfer of Criminal Cases ... 556
xlv.—Of Irrregular Proceedings 564
xlvi.—Miscellaneous ... ... ... 595
Schedule i.—Enactments repealed ... ... ... 613
ii.—Tabular Statement of Offences 014
iii. - Ordinary Powers of Provincial Magistrates 722
iv.—Additional Powers with which Provincial Magis
trates may he invested 725
v.—Forms 727
Index 753
ADDENDA.
NOTES OF CASES APPEARING IN THE FOUR SERIES OF THE

INDIAN LAW REPORTS, JANWARY- JUNE, 1898.
Charge to jury— Misdirection by the Judge—Erroneous verdict owing to jjj^jfj1*
misdirection—Failure ofjustice—Criminal Procedure Code (Act X of 1882),
sections 418, 423 (d) and 537. "° '
On a charge of rape the Judge in his charge to the jury said:—"You
will observe that this sexual intercourse was against the girl's will and with
out her consent, &c.," instead of saying, as he ought to have done, "you
will have to determine upon the evidence in this case, whether the inter
course was against the girl's will, &c." and the chargo went on in the
same style of stating to the jury what had been proved instead of leaving
it to them to decide what in their opinion was proved. In the concluding
sentence of the charge a Judge said :—"You have seen the witnesses, and
I have no doubt that you will return a just verdict." Held, that such a
charge amounted to a clear misdirection, and that the verdict was erroneous
owing to such misdirection. Even the concluding sentence did not satisfy
the requirements of a proper charge. The provisions in section 423 (d)
and section 537 of the Criminal Procedure Code do not require that the
Court is to go through tho facts and find for itself whether the verdict is
actually erroneous upon tho facts. Ali Fakir v. Queen- Empress .
Criminal Procedure Code (Act X o/1882), sections 133 and 137—Refer- P»je278
ence by Sub-Divisional Magistrate to a Second-Class Magistrate—Bond fide
question of title—Jurisdiction of Magistrate - Public nuisance.
A Sub-Divisional Magistrate having made a conditional order under sec
tion 133 of the Criminal Procedure Code (Act X of 1882) against a person
to remove an obstruction on a public thoroughfare, or appear and show
cause before a Second-Class Magistrate, the said person appeared as direct
ed, and the order was made absoluto under section 137. In revision the High
Court held that, having regard to the penultimate paragrapli of section 133,
the order was not illegal, on the ground that it was made absolute by a
Magistrate with second-class powers other than the Magistrate who made
the conditional order. In re Narasimha (I. L. R., 9 Mad., 201), approved
of. When a question of title is bond fide raised the Magistrate ought not to
make an order under sections 133 and 137 of the Criminal Procedure Code,
but should allow the party an opportunity for the determination of the
question by a Civil Court. The claim of title must, however, be bona fide
and not a mere pretence to oust jurisdiction ; and it is for tho Magistrate
to say whether the claim is a bond fide one or a pretence. Luckeenarain
Banerjee v. Bam Coomar Mookerjee (I. L. R., 15 Cal., 564), and Queen-Em
press v. Bissessur Sahu (I. L. R., 17 Cal., 562), followed. Although no
length of enjoyment can legalize a public nuisance—sen Municipal Com
missioners of Calcutta v. Mahomed Ali (7 B. L. R., 499)—yet the long
possession or enjoyment of what is said to be a nuisance may give to the
objection of the person so possessing or enjoying it the character of a bona
fide dispute as to title, such as might have the effect of ousting the jurisdic
tion of the Magistrate under sections 133 and 137 of the Code, and making
tho question a proper one for the Civil Court. Preonath Dey v. Gobor-
dhom Malo.
liv A ddenda.
Pure *>! Maintenance, order of Criminal Court as to—Criminal Procedure Code

{Act Jfo/1882), section 488— Imprisonment for default ofpayment of Main
tenance— Warrant of commitment—Procedure.
An order of commitment to prison for default in payment of a wife's
maintenance albwance cannot be made without proof that the non-payment
was due to wilful neglect of the person ordered to pay. Sidheswar Teor v.
Gyanada Dasi (I. L. R.. 22 Cal., 291). The law contemplates a single
warrant of commitment in respect of the arrears due at the time of its issue.
Where six months arrears were due an order for separate warrants of com
mitment awarding a separate sentence of imprisonment of one month on
each warrant, was therefore held to be bad in law. As to the mode of
computing the term of imprisonment the case of Allapichai Ravuthar v.
Mohidin Bibi (I L. R., ?0 Mad., 3), followed. Bhiku Khan v. Zahuran.
P»»e3M Reformatory Schools Acts (V of 1876), sections 2 and 7, and {VIII of
1897), section 1, clauses 2, 3 and 8— Criminal Procedure Code {Act X of
1882), sections 3 and 399—Criminal Procedure Code {Act X o/1872), section
318, General Clauses Consolidation Act {X of 1897)—Effect of the repeal
of a repealing Statute—Constniction of Statute.
The accused was convicted of the offence under section 457 of the Penal
Code by the Deputy Magistrate of Barisal, who found that the accused was
a boy of fourteen or fifteen years, decidedly under sixteen, and passed the
following order :—" I find Ahmad Ali, boy, guilty of house-breaking by night
for the purpose of committing theft, and instead of being imprisoned in the
jail under section 457 of the Penal Code, 1 direct under section 399 of the
Criminal Procedure Code and section 7 of Act V 1876, that Ahmad Ali be
confined in the Calcutta Reformatory for two years for training in some
branch of useful industry." Held, that the order could not be sustained under
section 7 of Act V of 1876 as that Act had been repealed before the date of
the order and the commission of the offence, nor under section 8 of Act VIII
of 1897, as the order did not comply with the provisions of the latter Act.
Held, further, that section 318 of the Criminal Procedure Code (Act X of
1872) having been repealed by section 2 of Act V of 1876, the corresponding
section 399 of the present Criminal Procedure Code (Act X of 1882) must
also be held by virtue of section 3 of the Code to have been repealed in the
provinces, including Bengal, to which Act V of 1876 was extended. The
repeal of a statute repealing another statute does not revive the repealed
statue. The law in India as embodied in section 7 of the General Clauses Act
(X of 1897) is the same as the law in England. Deputy Legal Remembrancer
v. Ahmad Ali.
P«k« 42s Possession, order of Criminal Court as to - Criminal Procedure Code
{Act X of 1882), section 145—Parties to proceedings—Manager in possession.
A persons who is in possession of la' d merely as manager for the actual
proprietor should not be made a party to proceedings under section 145 of
the Criminal Procedure Code. Brown v. Prithiraj Mandal.
P»«e«» Criminal Procedure Code {Act X of 1882), section 522— Restoration
of possession of immoceable property—Dispossession by use of criminal
force.
The words " an offence attended by criminal force " in section 522 of
the Criminal Procedure Code (Act X of 1882) mean an offence, of which
criminal force, either separately or as an ingredient of the offence of which
there is conviction, and where there is no finding that any person has been
dispossessed of any immoveable property by criminal force. Luchmi Dass
v. Pallet Lall (23 W.R., Cr. 54) and Soshi Bhusan Dutt x. Pyari Kishore
(C. W. N , eclvt) followed. Ram Chandra Boral v. Jityandria alias Faring
Bhuttacharjee.
Addenda. lv
Recognizance to keep the peace—Surety bond—Liability to forfeiture —Evi- PagaMO.
dence necessary—Criminal Procedure Code (Act X of 1882), section 514.
The mere fact of the person for whom another stands surety being
convicted of a breach of the peace ought not to be sufficient to make the
surety bond executed by the latter liable to forfeiture without any evidence
taken in the presence of the surety to show that the forfeiture has been
incurreJ. The language of section 514 of the Criminal Procedure Code (Act
X of 1882) does not indicate that the final order making a person bound by a
bond can be made without taking any evidence in his presence or giving him
any opportunity of cross-examining the witnesses on whose evidence the
forfeiture is held to be established. The mere production of the original
record or of a certified copy of the original record of the trial in which the
principal had been convicted of breaking the peace within the period covered
by a bond would not be conclusive, if indeed it would be any evidence
against the surety in a proceeding under section 514 of the Criminal Pro
cedure Code. Queen-Empress v. Har Chandra Chowdhury.
Factories Act (XV of 1881 as amended by Act XI of 1891), section 15 pgg0 454
(g) andpriviso (i), 17^Bengal Municipal Act (Bengal Act III o/1884),
sections 320, 321—Liability for neglecting to keep a factory in a cleanly
state—Criminal Procedure Code (Act X of 1882), section 537. Nuisance—
Sanction.
The Inspector of factories having found the latrines of the Hastings Mill
within the Serampore Municipality in a filthy state instituted a prosecution
against the manager of the mill, but the prosecution failed. He then prose
cuted as representing the Municipal Commissioners.of Serampore, the Chairman
of the Municipality, who, on conviction, was fined Rs. 200 for " neglecting to
keep the factory free from eflluvia arising from a privy," under the provisions
of the Factories Act and of Bengal Municipal Act, section 320. Held, that the
conviction of the Chairman was unsustainable on the finding that the Munici
pality and the occupier of the factory were jointly responsible. Held, further,
that it lay upon the occupier of the factory as being primarily liable for
breach of any of the provisions of the Factories Act, to give the strict
est proof of circumstances exonerating himself from the liability in order
to fix it on any other person. Chairman of the Serampore Municipality v.
Inspector of Factories, Roughly.
Criminal Procedure Code, section bib—Death caused by negligence—Com- Madras Strlaal
pensation to widow. Paw 7*"
A Magistrate imposed a fine in addition to a sentence of imprisonment
on a conviction for the offence of causing death by a rash and negligent act,
and gave compensation to the widow of the deceased out of the fine imposed.
Held, that compensation could not be given to the widow under Criminal
Procedure Code, section 545. Yalta Gangulu v. Mamidi Dali.
Confessional statements of accused—Subsequent retraction—Criminal Pro- Page 83.
cedure Code, section 103—Search by police of stolen property—Charge tojury.
It cannot be laid down as an absolute rule of law that a confession made
and subsequently retracted by a prisoner cannot be accepted as evidence of
his guilt without independent corroborative evidence. A jury should be asked
with reference to such confessions, not whether they were corroborated by
independent evidence, but whether having regard to the circumstances under
which they were made and retracted, and all the circumstances connected with
them, it was more probable that the original confessions or the statements re
tracting them were true. Criminal Procedure Code, seotion 103, does not
justify the view that the persons called upon to witness a search are to be
selected by any person other than the officer conducting the search. If the
Ivi Addenda.
Sessions Judge considers that the evidence of an Inspector of police is neces

sary, ho ought not to animadvert on his absence in clinging the jury ; but he
should intimate his opinion to the Public Prosecutor and give him the oppor
tunity of calling that official. It is wrong for a Judge in charging the jury
to say that a head constable committed a breach of the police regulations in
conducting a search with a loose shirt on, without examining him on the
matter and taking evidence as to whether or not his body was examined, be
fore ho began the search. Queen-Empress v. Raman.
Criminal Procedure Code, Act X of 1882, section 419—Presentation oj cri
minal appeal.
A petition of appeal under the Criminal Procedure Code is not duly pre
sented when, having been signed by a pleader, it is handed in by a person who
is not his clerk and over whose conduct and actions he has no control. Quseu-
Empress v. Ramasami.
Criminal Procedure Code—Act X of 1882, sections 195 (V), 423, 439 and
476— Whether a High Court in revision can revoke an order of a Subordinate
Court under section 476, Code of Criminal Procedure.
A High Court, as a Court of Revision, has power, under section 439, to
revoke an order made by a subordinate Court under section 476 of the Code
of Criminal Procedure. Queen-Empress v. Srinicasalu Naidu.
Penal Code {Act XLVoflSQO), section 121 A —Evidence— Writings show
ing intention or animus—Letters of contributors published in newspapers —Dis
affection—Order to prosecute—Criminal Procedure Code (Act X of 1882),
section 196—Construction—Reference to proceedings in Legislative Council.
The accused, who was the editor, proprietor, and publisher of the "Kesari
newspaper, was chargod under section 124A of the Penal Code (Act XLV
of 1860) with exciting and attempting to excite feelings of disaffection to
Government by the publication of certain articles, &c, in the "Kesari" in its
issue of the 15th June, 1897. At the trial an order for the prosecution given
by Government under section 196 of the Criminal Procedure Code (Act X of
1882) in the following form, dated July 26, 1897, was tendered in evidence :
—" Under the provisions of section 196 of the Code of Criminal Procedure,"
Mirza Abas Ali Baig, Oriental Translator to Government, is hereby ordered
by His Excellency the Governor in Council to make a complaint against Mr.
Bal Gangadhar Tilak, B. A., LL. B., of Poona, publisher, proprietor and
editor of the " Kesari", a weekly vernacular newspaper of Poona, and against
Mr. Hari Narayan Gokhab, of Poona, printer of the said newspaper, in respect
of certain articles appearing in the said newspaper, under section 124 A of the
Indian Penal Code and any othersection of the said Code which may be found
to be applicable to the case." Counsel for the accused objected that the order
was too vague and should have specified the articles with reference to which
the accused was to be charged. Held, that the order was sufficient and was
admissible, but that if it were not sufficient, the commitment might he ac
cepted and the trial proceeded with under section 532 of the Code of Criminal
Procedure. Queen- Empress v. Morton, (I. L. li., 9 Bom., 28o). In order to
show the intention of such publications, counsel for the prosecution tendered
in evidence a certain letter signed " Ganesh, " which appeared in the issue of
the "Kesari" of May 4, 1897. Objection was taken that it was not admissible,
inasmuch as letters to newspapers often express opinions which are not the
opinions of the editor and publisher. Held, that the letter was admissible
to show intention and animus. The proceedings in the Legislative Council
which resulted in the passing of an Act cannot be referred to as aids to the
construction of that Act. Administrator-General of Bengal v. Prem Lai
Mullick (L. P.., I. A., 107). Section 124A of the Penal Code (Act XLV of
1860) explained. Meaning of the word " disaffection." At the close of
Addenda. Ivii
the Judge's charge to jury, counsel for the first accused asked that the
following points might he reserved for the decision of the Court under
section 434 of the Criminal Procedure Code (Act X of 1882), viz. :—(1)
Whether the order for the prosecution was sufficient under section 196 of
the Criminal Procedure Code. (2) Whether the High Court had power,
in the absence of a sufficient order, to accept the commitment of the
accused under section 532 of the Criminal Procedure Code and to proceed
with the trial. (3) Whether the meaning given to the term " disaffection"
by the Judge in his charge to the jury was correct. The Judge declined to
reserve the above points. The first accused having been convicted, applied
to a Full Bench under clause 41 of the Amended Letters Patent 1805, for
a certificate that the case was a fit one for appeal to the Privy Council.
The points upon which he desired to appeal were those which his counsel
at the close of the trial asked the Judge to reserve as above Btated. The
Full Bench refused to grunt the certificate. Queen-Emptiest v. Bal Ganga-
dhur Tilak ami Keshae Muhudev Bal.
Criminal Procedure Cole (Act X of 1882), section 545—Compensation— p«g6 4ss. ■
Injur// caused by the offence committed—Indirect consequences resulting from
the offence.
Compensation for loss caused by inability of the complainant to attend
to his work on at count of his time being taken up with the prosecution of
the accused, cannot be ordered to be paid under section 545 of the Code of
Criminal Procedure (Act X of 1882), which deals with expenses incurred
in the prosecution and with compensation for the injury only. Imperalrix
v. Nurayan Vamanaji Patil. , .
Criminal Procedure Code, sections 35 and 367—Concurrent sentences not Allahabad
authorised hy the Code. ISge**'
There is no provision in the Code of Criminal Procedure by which a
Court is empowered, on convicting an accused person of two or more
offences at the same time, to direct that the sentences imposed in respect of
such offences shall run concurrently. Queen-Empress v. Jshri.
Criminal Procedure Code, sections 337 and 529 - Pardon— Tender o/ Paje*9
pardon hy a Magistrate having powers uiuler section 337, but not being the
Magistrate before whom enquiry was being held.
A dacoity was committed in the district of Muttra and was being
enquired into in that district Ponding such enquiry, one Partap Singh ap
peared before the Magistrate of the neighbouring district of Etah and
obtained from him a tender of pardon in respect of the said dacoity, on the
strength of which pardon he was examined as a witness by the Magistrate
of the Etah district and made a statement implicating himself and others in
the dacoity. Subsequently, on the case being committed to the Court of
the Sessions Judge of Agra, the tender of pardon made by the District
Magistrate of Etah was ignored and Partap Singh was tried aud sentenced
for the dacoity. Held, on appeal to the High Court, that the Magistrate
of Etah district had no jurisdiction, under the circumstances, to make the
tender of pardon which he did, and that his action in that respect was not
covered by section 529 of the Code of Criminal Procedure. Queen-Empress
v. Chidda.
Act No. XXII of 1881 (Excise Act), sections 27, 28, 29, 30, 34 and 47— P»ge 70.
Act No. XI T 0/1896, sections 36, 37, 38, 41, 7 - Excise officer—Juris fiction.
Held, that an officer invested with powers under sections 27, 28 and 29 of
Act No. XXII of 1881, who had power in certain events to take the case be
fore a Magistrate under section 32, was an " excise officer" within the mean
ing of section 47 of the Act. Queen-Empress v. Makunda.
Iviii Addenda.
P»ge9S. Act No. IX of1890 (Indian Railways Act), sections 113, 132—Act No.
XLV of 1860, sections 40, 64 Criminal Procedure Code, section 33—" Of
fence "—Travelling on a Railway without a proper ticket—Punishment.
A passenger who travels in a train without having a proper pass or ticket
with him has not committed un " offence." He cannot therefore be legally
sentenced to imprisonment in default of payment of the excess charge and
fure which may be recovered under the provisions of section 113, clause (4) of
Act No. IX of 1890. Queen-Empress v. Ram ial.
Pure 124. Act No. XIII of 1859 (Fraudulent Drenches of contract by workmen), sec
tion 1 —Criminal Procedure Code, section 83— Warrant.
Held, that section 83 of the Code of Criminal Procedure is applicable to
warrants issued under Act No. XIII of 1859. Gauri Shankar v. Alata Pra
sad.
*»»131. Criminal Procedure Code, section 555—Jurisdiction—Appellate Court not
disqualified by interestfrom granting permission to a Subordinate Court to try
a case.
The interest which might disqualify a Court from trying or committing
for trial a case, having regard to section 555 of the Code of Criminal Proce
dure, will not prevent an Appellate Court from giving the permission contemp
lated by that section. Queen-Empress v. Fateh Bahadur.
Paite:0i. Criminal Procedure Code, section 110 et seqq.— Securityfor good behaviour
— Object demanding security —Discretion of Magistrate in accepting or refusing
sureties tendered.
The object of requiring security to bo of good behaviour is not to ob
tain money for the Crown by the forfeiture of recognizances, but to insure
that the particular accused person shall be of good behaviour for the time
mentioned in the order. It is therefore reasonable to expect and require that
the sureties to bo tendered should not be sureties from such a distance as
would make it unlikely that they could exercise any control over the man
for whom thev were willing to stand surety. Queen- Empress v. Rahim
Bullish.
Paire 204. Criminal Procedure Code, section SOS—Evidence—Procedure—Duty of
Magistrate enquiring into a case triable by the Court of Session to take the evi
dence of the witnesses produced by the accuifd.
A Magistrate inquiring into a case under chapter XVIII of the Code of
Criminal Procedure is not empowered to frame a charge or make out an order
for commitment until and after he has taken all such evidence as the accused
may produce before him for hearing. Queen-Empress v. Ahmadi.
NOTES OF CASES APPEARING IN THE CALCUTTA WEEKLY

NOTES, VOL. II, JANUAKY-JUNE 1898.
walifiuvttt Criminal Procedure Code (Act X of 1882), sections 374,375, 376, 118
Weekly Notes, clause (d) -Jury trial—Appeal—Powers of High Court to enter unto
Page m. facts on a reference under section 374, Code of Criminal Procedure - Penal
Code (Act XLV of 18'i0', section* 114, 149, 302- Constructive murder—
A betment.
Although the trial of an accused is by a Jury, sections 375 and 376,
Code of Criminal Procedure, show that in a case submitted for confirmation
of sentence of death under section 374 of the Code, the High Court must
Addenda. lix
deal with the case upon the facts, as well as with reference to any question
of law arising in it, and that its powers are not limited in the way they
are in an appeal from a conviction in a trial by jury. But in an appeal
against a conviction in a trial by a Jury, it is not open to the High
Court to go into the facts, and the appeal must only be limited as laid
down in sections 418 and 423, clause (d), of the Code, to points of law, not
withstanding the appeal is heard along with a reference made under sec _
tion 374 of the Code, in the case of a co-accused. When the actual com
mission of the murder was by some other person and the accused were
present standing near without doing any thing, und there is no evidence to
show that when the accused left the place they started from with the actual
perpetrator of the deed, they shared with him the common object of causing
the death of the deceased or knew that his death was likely to be caused,
or that the number of assailants with a common object was five or more,
but it was proved that they were armed with lathis and did nothing to
prevent the murder, they cannot be convicted of constructive murder
under section 302 read with section 149, Penal Code, but they ought to be
convicted of constructive murder under section 302 read with section 114.
Queen-Empress v. Chatradhari Goala ami others
Criminal Procedure Code {Act X of 1882), sections 526, claute (c), (rf) P»«e«8-
(e), 54 1 — Transfer, grounds for—Jury.
In an application for transfer of a criminal case pending in a Sessions
Court, it appeared from an affidavit made by the District Magistrate that
he us well as the Sessions Judge thought that a fair and impartial jury
could not be obtained if the case were tried in that district ; under the
circumstances held, that the expression of such belief was sufficient,
quite apart from the foundations thereof, to shake the confidence of the
public and of the parties interested in the fairness and impartiality of the
jury to try the case and create in their minds a reasonable apprehension
that a fair and impartial trial could not he hail if the case were tried there,
and therefore an order for transfer was expedient for the ends of justice
under section 526, clause (e) of the Code of Criminal Procedure. Even wdien
there are reasons giving rise to conflicting considerations for such transfer
on the grounds of inconvenience to the accused und his witnesses as also
to the Court in holding a local inspection the ground above mentioned
under section 526, clause (e) should prevail. Held, also, that clause (e) of
section 526 refers to expediency for the ends of justice and not to expedi
ency from any political point of view. Queen-Empress v. Bhuirab Chuiuler.
Criminal Procedure Code {Act X nj 1882), section 144—Penal Code {Act Pwe'°-
XLV of 1860), section 188—Jurisdiction ofa Magistrate.
Where a Sub-Divisional Magistrate, by an order purporting to have been
made under sec tion 144, Code of Criminal Procedure, directed certain prosti
tutes and their zemindars, under whom they held the land, to remove the
houses of the former from a particular site within 24 hours and to take up
their quarters on the opposite side of a railway line, on the ground that the
visitors to the prostitutes have to cross the railway lines and thereby their
lives would be endangered, and for the disobedience of the said order
directed prosecution under section 188, Penal Code. Held, that section 144
of the Code was not intended to apply to such cases, and the orders referred
to were idtra fires. In re liasu Majumdar and otliers.
Criminal Procedure Code {Act X of 1882 , section 437—Further enquiry PagelM.
—Notice to the accused ■ Practice.
Before making an order for further enquiry under section 437
Criminal Procedure Code, a notice should bo given to the accused person to
give him an opportunity of being hear 1 upon the question whether any
further enquiry should be made. Juijae Ram v. Suphal Singh.
lx Addenda.
YtmoWi. Criminal Procedure Code (Act X of 1882), sections 404 and 522—Order
(under section 522) restoring possession of immoveable property, not appealable
— Jurisdiction of Appellate Court to deal with such an order— Penal Code
(Act XL V of 18(30), sections 147, 148 and 326.
Where a Deputy Magistrate, while convicting some of the accused of
offences under section 147 and others of offences under sections 148 and
3 '6, Penal Code, and sentencing them to various terms of imprisonment, made
an order under section 522 of the Code for the restoration to the complainant
of possession of the disputed land, which order was carried into effect
shortly afterwards, and the Sessions Judge, on appeal, while setting aside
the conviction of the accused under sections 147 and 148, Penul Code, set
aside the order passed by the Deputy Magistrate under section 522 of the
Code of Criminal Procedure, and by a separate order directed the Deputy
Magistrate virtually to give effect to the previous order passed on appeal, and
the Deputy Magistrate thereupon directed the police to do so ; held, tbat an
order passed under section 522 of the Code is not appealable, having regard
to the general rule laid down by section 404 of the Code. Held, also, that an
order directing restoration of possession under section 522 of the Code, l>eing
once made, is, so far as the Criminal Courts are concerned, tinal. Held
further, that such an order cannot be regarded as an integral part of the
judgment appealed from, so as to Rtand or fall, according as the judgment is
upheld or reversed. Held, that the Court of Session, us an Appellate Court,
exceeded its jurisdiction in setting aside the order made under section 522.
In re Ram Chandra Mistry v. Nobin Mridha.
Vase 200. Criminal Procedure Code (Act X of 1882), sections 4 (a), 203, 437—Ma
gistrate's order to stay proceedings against accused—Re viral of proceedings by
setting aside order skiying proceedings—Judicial or executive order.
Where, subsequent to the trial of one of several accused persons which
ultimately resulted in his acquittal, an application was made asking the Dis
trict Magistrate to direct the police to arrest the absconding accused and to
proceed against them, and the District Magistrate passed an order staying
further proceeding on the ground that the case against such accused would
not Btand, and his successor in oflice made an order directing the arrest and
reviving tho proceedings against the accused: Held, that the order staying
proceedings, whether the petition on which it was made was a complaint
within section 4 (a) or not, was clearly one made in the course of a judicial
proceeding, and was, therefore, a judicial and not an executive order ; that it
was, if not in terms of any rule in effect, an order dismissing a complaint,
and therefore it was not competent to the successor in office to set aside such
order of his predecessor. Inderjit Singh and others v Thalcur Singh
Page 341. Criminal Procedure Code (Act X of 1882), section 234 Charge and trial
for criminal misappropriation in respect of a general deficiency in accounts
without proof of individual defalcations.
Held, that having regard to section 234, Code of Criminal Procedure, an
accused person cannot be charged with, and tried at the same time for, crimi
nal misappropriation of a sum which is not the subject of a single act of mis
appropriation, but represents a general deficiency, consisting of a lengthened
series of separate defalcations. Where there have been separate acts of mis
appropriation, the accused cannot be tried ut the same time for more than
three of such acts committed within a year ; but where it may be properly in
ferred from the evidence that there has been but one act of misappropriation,
although the sum misappropriated may represent the aggregate of sums re
ceived by the accused at different times, be may be charged and tried at one
trial in respect of the aggregate sum, or if there be three such acts occurring
within a year, then in respect of all of thein. Ekram Ali v. Queen-Empress.
Addenda. Ixi
Criminal Procedure Code (Act X of 1882), -section 144—Minor—Juris- Piute 422.
diction.
An order purporting to have been made under section 144, Code of Cri
minal Procedure, to the effect that the petitioner should not go to a certain
village or allow any of his servants, relations or friends to go there, is of the
most indefinite character. A Magistrate cannot make such an order against
a minor and hold him responsible for the acts of other persons. Golam Ma-
hamed alias Alamgir Khan Chowdhury v. Bkuban Mohan Moitra and others.
Indian Penal Code (Act XLV of 1860), section 486—Having in posses- Pace «0.
sion for sale—Criminal Procedure Code (Act X of 1882), section 182—
Jurisdiction to try.
The accused carried on a business in ghee at Rangoon. Certain tins of
ghee, bearing the alleged counterfeit trade-mark of he complainant, a
local ghee-dealer, were despatched from Etwa destined for Rangoon. On
arrival of the ghee at Howrah, the accused took delivery and was in the
act of sending it by dinghi towards a steamer bound for Rangoon, when it
was seized by the police. The ghee was intended for sale, not in Howrah
or Calcutta but in Rangoon. Held, that to constitute an offence under sec
tion 486 it was not necessary that the sale should be intended to take place
within the local jurisdiction of the Court in which the complaint is lodged.
Possession within such jurisdiction of an article bearing a counterfeit trade
mark with the intention of sale, irrespective of the locality of intended sale,
is sufficient. Held, therefore, that possession of certain tins of ghee at
Howrah, bearing a counterfeit trade-mark, though intended for sale in
Rangoon, constituted an offence under section 486 of the Penal Code com
mitted at Howrah, and the Courts there had jurisdiction to try the accused
under section 182 of the Criminal Procedure Code. In re \usaf Muhamad
Abarath.
Criminal Procedure Code (Act X of 1882), sections 350, 537—Re-trial Pmte46s.
after order of remand—Commencement of " trial," meaning of.
The accused who had originally been convicted having moved the High
Court, the High Court " set aside the conviction and sentence and sent the
case back for re-trial." The Magistrate having left the district, the case
came up before another Magistrate who had taken his place ; and the first
order that was recorded after the remand, was dated the 6th August, whioh
was recorded before the accused had appeared in Court, but in the presence
of the mukhtear who had acted at the previous trial and who was directed to
put in a list of witnesses against whom he wanted process to issue ; the
second order which was recorded on the 9th August was simply to the
effect that warrants should issuo against the witnesses named. The accused
appeared before the Magistrate on the 27th August and made an applica
tion under section 350, C. P. C, for the re-summoning and re-hearing of
the witnesses who had been examined for the prosecution at the previous
trial. The Magistrate refused the application on the ground that the appli
cation was made at the third hearing and that it ought to have been made
when he commenced his proceedings. Held, that the Magistrate acted
in contravention of the provisions of section 350 in refusing the application,
inasmuch as the re-trial could not be held to have commenced before the
27th, which was the first day when the accused entered appearance after
remand, and if the re-trial had not commenced, it could not be said that the
proceedings of the Magistrate had commenced before that day. Per
Maclean, C. J.—The expression " trial " means the proceedings which
commences when the case is called on, with the Magistrate on the Bench,
the accused in the dock, and the representatives of the prosecution and for
the defence, if- the accused be defended, are present in Court for the hear
ing of the case. Per Banerji, J.—A trial held by a Magistrate presiding
Ixii Addenda.
in the Court of first instance on evidence not recorded by him, and on

evidence of witnesses whose manner and demeanour he had not the ad
vantage of observing, must be considered to be a trial held not nccording
to law, and without one of the most important guarantees for a correct
decision, and there is, therefore, a failure of justice. Section 537 cannot
cure the defect in this case Gomir Sirdar v. The Queen-Empress
Ptge 481. Ordinary Original Criminal Juris liclion of the High Court— Trial com
menced and evidence partly gone into be/ore one Judge —Retirement of Judge
from the case under section 555, Criminal Procedure Code, without discharging
the jury—Replacement by new Judge appointed by the Chief Justice—Powers
of Chief Justice over oilier Judges of the High Court—Jurisdiction of the new
Judge to try case pending before another properly constituted Court—Discharge
ofjury before verdict how effected, sections 282 and 283, Crimiml Procedure
Code — Concurrent trials on the same indictment and on the same facts—Nolb
prosequi, section 333, Criminal Procedure Code.
At the Criminal Sessions of the High Court the trial of the accused
had commenced before IUmpjni, J., and evidence partly had been gone into
when liis Lordship retired from the case under section 555 of the Criminal
Procedure Code, and the case was adjourned without the jury being discharg
ed. The Chief Justice, purporting to act under cl. 13 of the Charter,
appointed Stevens, J., to preside at the trial of the accused In answer to a
question by Stevens, J., the Standing Counsel intimated that he intended
proceeding with the trial from the point where it had been lefi. Where
upon it was contended on behalf of the accused that Stevens, J., could not
proceed with the trial, as Rampini, J., and the jury empannelled before him had
still the seisin of the case. The Advocate-General referred a nolb prosequi
and the accused was discharged. Empress v. Khageiulra Nath Bannerji.
r«ge«M. Criminal Procedure Code (Act X of 1882), sections 279, 367—Judges
charge to jury—Insufficient explanation of the law, Criminal Procedure Code,
section 298—Duty of Judge to exclude inadmissible evidence —Misdirection—
Act XI of 1855, section 24—Evidence Act {I of 1872), sections 126, 127—
Criminal Procedure Code {Act X of 1882), section 4 («)—Mukhtear—Mukh-
tear's Clerk—Admissibility of statements made by client to the same—Compro
mise, evidence of, in relation to guilty knowledge.
It is incumbent on the Judge to explain the law relating to the particular
offence charged against the accused in order to enable thu jury to apply the
law to the special facts of the case. A mere mention of the sections of the
Penal Code under which the accused were charged is insufficient. Although
the Judge is not bound to record a judgment, yet he should give sufficient
indication in his record of the heads of the charge that he has compliod with
the law so as to enable the Appellate Court to determine whether or not he has
acted in accordance with the section (297) It is the duty of the Judge
under Criminal Procedure Code, section 298, to Bee that evidence which is
not admissible in itself should not be allowed to go in to the prejudice of the
accused, though no objection is taken thereto by the accused. Section 126 of
the Indian Evidence Act must be construed as applying to all persons who
come within the category of "pleader," as defined in Criminal Procedure Code,
section 4 (n), and includes, therefore, a mukhtear. Statement by accused
persons that a fidse charge was going to be brought against them to a
mukhtear who was at the time acting for one of them as his mukhtear and
legal adviser, and to whom the statement was made with the object that ho
should appear for them in Court, are privileged under section 126. Statements
made to the clerk of a mukhtear who was acting as pleader for the accused
are privileged under section 127 of the Evidence Act. Evidence relating to
a compromise during the pendency of the case ought not, in the exercise of
a proper discretion, to have been allowed to go in as evidence of guilty
knowledge against the accused. Abbas Peada v. Queen-Empress.
Addenda. Ixiii
NOTES OF CASES APPEARING IN THE WEEKLY NOTES, N.-W. P., Weekly Notes,
1898, JANUARY—JUNE 1898. N w Pn 1898
Pagetl.
Criminal Procedure Code, sections 3159, 537 —Irregularity - Addition to a
judgment after signature.
Held, that the mere fact of an addition being made to a judgment after
it has been signed and delivered, where such addition does not materially
prejudice the accused and has not occasioned a failure of justice, does not
vitiate the whole judgment and justify an order for re-trial. Queen-Empress
v. Husenuddin.
Criminal Procedure Code, section 555—Jurisdiction—Appellate Court Pa*e 11 ■
not disqualified by interestfrom granting permission to a subordinate Court to
try a case.
The interest which might disqualify a Court from trying or committing
for trial a case, having regard to section 555 of the Code of Criminal Pro
cedure, would not prevent an appellate Court from giving the permission con
templated by that section. Queen-Empress v. Fateh Bahadur.
Criminal Procedure Code, section 438—Powers of Magistrate or Court of Page 12.
Session not limited to any particular class of case — Reference
Section 438 of the Code of Criminal Procedure contains nothing to limit
or qualify the power which it confers on a Court of Session or a District
Magistrate, or to suggest that the High Court should not consider a case so
reported and pass orders accordingly. Queen-Empress v. Babu.
Criminal Procedure Code, sections 517, 520—Order for disposal ofproperty P»ge *o
regarding which an offence has been committed—Appeal—Revision.
Certain persons were convicted by a Magistrate of tho offence punishable
under section 411 of the Indian Penal Code, and some property found in their
possession was ordered to be delivered to the complainant. Before that order
was carried out the convicts appealed to the Sessions Judge, who acquitted
them and ordered the property in question to be restored to them. Held, that
the order of the Sessions Judge as to the restoration of the property was not
an order under section 517 of the Code of Criminal Procedure, but was an
order under section 520 of that Code and was a correct and legal order Held,
also, that the remedy against such an order made by an Appellate Court was
by a petition for revision and not by way of appeal. Debt Prasad v Puran.
Criminal Procedure Coie, section 208—Evidence—Procedure—Duty of Page 52.
Magistrate enquiring into a case triable by the Court of Session to take the
ecidence of the witnesses produced by the accused
A Magistrate enquiring into a case under Chapter XVIII of the Code
of Criminal Procedure is not empowered to frame a charge or make out
an order for commitment until and after he has taken all such evidence as
the accused may produce before him for hearing. Queen-Empress v.
Ahmadi.
Criminal Procedure Code, section 437— Order for further enquiry—Order PageW.
to the prcjiulice of an accused person—Notice to show cause.
Before any order is made to the prejudice of an accused person, notice
should be given to that person to appear and show cause why the order should
not be passed. Queen-Empress v. Ajudhia.
THE
CODE OF CRIMINAL PROCEDURE, 1898.
(Act No. V of 1898.)
An Act to consolidate and amend the Law relating to

Criminal Procedure-
Whkrkas it is expedient to consolidate and amend the Law re
lating to Criminal Procedure ; It is hereby enacted as follows: —
PART I.
PRELIMINARY.
CHAPTER I.
I. (/) This Act may be called the Code of Criminal Proce- short title,
dure, 1898 ; and it shall come into force on the first day of July Commeucoment-
1898. J J
(2) It extends to the whole of British India ; but in the Extent,

absence of any specific provision to the contrary, nothing herein
contained shall affect any special or local law now in force, or any
special jurisdiction or power conferred, or any special form of pro
cedure prescribed, by any other law for the time being in force, or
shall apply to —
(a) the Commissioners of Police in the towns of Calcutta,
Madras and Bombay, or the police in the towns of
Calcutta and Bombay ;
(i>) heads of villages in the Presidency of Fort St. George ; or
(c) village police-officers in the Presidency of Bombay :
Provided that the Local Government may, if it thinks fit,
with the sanction of the Governor General in Council, by notifi
cation in the official Gazette, extend any of the provisions of this
Code, with any necessary modifications, to such excepted persons.
1
2 Preliminary, [Chap. I.
[British India.] [3. (7) (Act X of 1897). "British India" shall mean all
territories and places within Her Majesty's dominions which are for the
time being governed by Her Majesty through the Governor- General oE
India or through any Governor or other Officer subordinate to the Go
vernor-General of India.]
Effect of the For the legal effect of the authority of Local Governments to extend the
authority of l-o- provisions of Acts of the Legislative Council, see Empress v. Bui ah, I. L. Ii..
S?SSS. * Cal. 172 ; S. C, L. R, 5 Ind. App. 178.
Repeal oi en- Z. (/) On and from the first day of July, 1898, the enact-
nctments. nieiits mentioned in the first schedule shall be repealed to the ex
tent specified in the fourth column thereof, but not so as to res
tore any jurisdiction or form of procedure not then existing or
followed, or to render unlawful the continuance of any confine
ment which is then lawful.
Notifications, (2) All notifications published, proclamations issued, powers
pâi'ed" Acts. ™" conferred, forms prescribed, local limits defined, sentences parsed,
and orders, rules and appointments made, under any enactment
hereby repealed, or under any enactment repealed by any such
enactment, and which are in force immediately before the first
day of July, 8(J8, shall be deemed to have been respectively pub
lished, issued, conferred, prescribed, d .'fined, passed and made un
der the corresponding section of this Code.
Pending cases. (3) The provisions of this Code shall apply to all proceed
ings instituted after the commencement of this Code, and, so far
as may be, to all cases pending in any Criminal Court when this
Code comes into force.
References to 3. (/) In every enactment passed before this Code comes
nai Procedure into force, in which reference is made to. or to any chapter or sec-
"peaV'TnacT tion of, the Code of Criminal Procedure. Act XXV of 1861, or
monta. Act X of 1872, or Act X of 1882, or to nny other enactment here
by repealed, such reference shxll, so far its may be practicable,
be taken to be made to this Code, or to its corresponding chapter
or section.
Expressions in (2) In every enactment passed before this Code comes into
former Acts. forc0) the expressions '' Officer exercising i or having ') the powers
(or 'the full powers') of a Magistrate." '' Subordinate Magistrate,
first class." and " Subordinate Magistrate, second class." shall res
pectively be deemed to mean " Magistrate of the first class." Magis
trate of the second class, ' and ''Magistrate of the third class," the
expression " Magistrate of a division of a district" shall be deemed
to mean " Snbdivisional Magistrate," the expression " Magistrate
of the district " shall fie deemed to mean " District Magistrate,"
the expression '" Magistrate of Police" shall be deemed to mean
"Presidency Magistrate." and the expression "Joint Sessions
Judge" shall mean "Additional Sessions Judge."
<
Ss 2-4.] Preliminary. 3
4. (/) In this Code the following words and expressions have Definition*,
the following meanings, unless a different intention appears from
the subject or context :—
(a) "Advocate-General " includes also a Government Advo- n^j/?catoGe"
cate, or, where there is no Advocate- General or Gov
ernment Advocate, such officer as the Local Govern
ment may, from time to time, appoint in this behalf :
(1>) " bailable offence " means an offence shewn as bailable in 0gJH£n a b 1 8
the second schedule, or which is made bailable by any ab)'eI^"b(,*!.1"
other law for the time being in force ; and " non-
bailable offence " means any other offence :
(c) " charge includes any head of charge when the charge " ciiwrc."
contains more heads than one :
(</) " Chief Justice " includes also the Chief Judge of the ti^9,hio' Jus'
Chief Court of the Punjab and the Recorder of Ran
goon :
(e) "Clerk of the Crown" includes any officer specially "Clerk of
appointed by the Chief Justice to discharge the func- the Crown'
tions given by this Code to the Clerk of the Crown :
(f) " cognizable offence " means an offence for, and " cog- 0^n^,UiXB,'1e
sizable case " means a case in, which a police-officer, - Cognizable
within or without the pres'dency-towns, may, in caso"
accordance with the second schedule, or under any
law for the time being in force, arrest without war
rant :
(g) " Commissioner of Police " includes a Deputy Commis- ^XT"-
sioner of Police :
(Jt) "complaint" means the allegation made orally or in 'Complaint,
writing to a Magistrate, with a view to his taking
action, under this Code, that some person, whether
known or unknown, has committed an offence, but
it does not include the report of a police-officer :
(i)
w "European r British subject
J " means — "Em-open*
British suV-
(i) any subject of Her Majesty born, naturalised or domi- iect'
ciled in the United Kingdom of Great Britain and
Ireland, or in any of the European, American or
Australian Colonies, or Possessions of Her Majesty,
or in the Colony of New Zealand, or in the Colony
of the Cape of Good Hope or Natal :
(ii) any child or grand-child of any such person by legiti
mate descent :
Preliminary. [Chap. I.
"High Court." (;') " High Court" means, in reference to proceedings against
European British subjects, or persons jointly charged
w'th European British subjects, the High Courts of
Judicature at Fort William, Madras and Bombay, the
High Court of Judicature for the North-Western
Provinces, the Chief Court of the Punjab and the
Court of the Ptecorder of Rangoon :
in other cases "High Court" means tin highest court of
criminal appeal or revision for any local area ; or,
where no such court is established under any law for
the time being in force, such officer as the Governor-
Geueral in Council may appoint in this behalf :
(k) "inquiry" includes every inquiry other than a trial con
"Inquiry." ducted under this Code by a Magistrate or Court :
(I) " investigation " includes all the proceedings under this
" Invest i g a- Code for the collection of evidence conducted by a
tion."
police-officer or by any person (other than a Magistrate J
who is authorised by a Magistrate in this behalf :
(m) "judicial proceeding" includes any proceeding in the
" Ju d i c i a 1 course of which evidence is or may be legally taken on
proceeding."
oath :
(n) " non-cognizable offence " means an offence for, and " non-
*' Non-cogniz-
able ofTenco." cognizable case " means a case in, which a police-
'• Non-cogniz officer, within or without a presidency town, may not
able case."
arrest without warrant :
(o) "offence" means any actor omission made punishable
" Offence."
by any law for the time being in force ;
it also includes any act in respect of which a complaint
may be made under section 20 of the Cattle-trespass
Act 1871:"
\p) " officer in charge of a police-station " includes, when the
*' O fn c e r in officer in ch irge of the police-station is absent from the
charge of a. station-house or unable from illness or other cause to
police-station."
perform his duties, the police-officer present at the
station-house who is next in rank to such officer and is
above the rank of constable or, when the Local Gov
ernment so directs, any other p dice-officer so present :
'Place.-' (7) " place" includes also a house, building, tent and vessel :
• Pioader." (r) " pleader," used with reference to any proceeding in any
court, means a pleader authorised under any law for
the time being in force to practise in such court, and
* Act No. I of 1871.

S. 5.] Preliminary. 5
includes (1) an advocate, a vakil and an attorney of a

High Court so authorised, and (2) any mukhtar or
other person appointed with the permission of the court
to aci in such proceeding :
(») "police station " means any post or place declared, gene- "Poiicetu-
rally or specially, by the Local Government to b3 a
police-station, and includes any local area specified by
the Local Government in this behalf :
(/) " Public Prosecutor " means any person appo'nted under g^"^"0 Pro"
section 492, and includes any person acting under the
directions of a Public Prosecutor, and any person con
ducting a prosecution on behalf of Her Majesty in any
High Court in the exercise of its original criminal
jurisdiction :
(«) "subdivision" means a subdivision of a district : sion^"" b'd ' Y'
(0) "summons-case" means a case relating to an offence, "8ummon»-
and nut being a warrant-case : and ca8e"
(w) " warrant case " means a case relating to an offence ca^ 8 r rant'
punishable with death, transportation or imprisonment
for a term exceeding six months.
(2) Words which refer to acts done, extend also to illegal Words refer-
. ' 1 0 ring to acta.
omissions, and
all words and expressions used herein and defined in Word a to
the Indian Penal Code, and not hereinbefore defined, shall hi meaning8 "sU'in
deemed to have the meanings respectively attributed to them by {.'^j*11 1>enal
that Code.
5. (1) All offences under the Indian Penal Code shall be T^1dôBSS3
investigated, inquired into, tried, and otherwise deult with accord- Code,
ing to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, Trial or offences
inquired into, tried, and otherwise dealt with according to the same K's"st ° cr
provisions, but subject to any enactment for the time being in
force regulating the manner or place of investigating, inquiring
into, trying or otherwise dealing with such offences.
The High Courts in Indian Presidencies nre Superior Courts of Record, Publication ot
The offence of contempt of court and the powers of the High Courts to Jjp'J, Jju^lm
punish it, are the same in such courts as in the Superior Courts in England, his Judicial ca-
Those powers, which formed part of the common law, were conferred upon n^'Vnciutfed'iu
the Supreme Courts when they were established in the presidency-towns. Penal Code—
The Indian Penal Code does not provide against a contempt of Court commit- Power of Courts
ted by the publication of a libel out of Court, when the Court is not sitting, and ""w!fl
neither in Chapter XXI, "of defamation,'' nor elsewhere provides for the Jurisdiction of
punishment of a contempt of Court committed by the publication of a libel JJj^hûmma-
reflecting upon a Judge in his judicial capacity, or in releience to his conduct riiy.
6 Constitution & Powers of Courts. [Chap II.
in the discharge of his public duties. Because the publisher can be punished
for "defamation" under the Code, it does not follow that he cannot be
punished summarily by the High Court for a contempt of Court. He can be
no punished with fine, or imprisonment, or both. The provisions of section 5 of
the Code of Criminal Procedure, 1882, relating to the procedure under which
" all offences under the Indian Penal Code," and " all offences under any other
law," are punished, do not include a contempt of the High Court committed
by the publication of a libel out of Court, when the Court is not sitting,
although such contempt may include defamation. Such a contempt is more
than mere defamation, and is of a different character. The jurisdiction of the
High Court to commit for contempt has not been affected by the Code
of Criminal Procedure, 1882. By the common law every Court of Record is
the sole and exclusive Judge of what amounts to a contempt of Court.
Surendra Nath Bamrjee v. The Chief Justice and Judges of the High Court
at Fort William in Bengal, I. L. R., 10 Cal., (P. C.) 109 (1888).
PART II.
CONSTITUTION AND POWERS OF CRIMINAL

COURTS AND OFFICES.
CHAPTER II.
Of rriE Constitution of Criminal Courts and Offices.
A — Classes of Criminal Courts.
classes of Cri- 6. Besides the High Courts and tbe Courts constituted
miual Courts. un(jer Rny jflw otber ^ ^ for ^ ^
there shall be five classes of Criminal Courts in British India,
namely : —
I.— Courts of Session:
II.— Presidency Magistrates:
III.— Magistrates of the first class:
IV. —Magistrates of the second class:
V.— Magistrates of the third class.
B.— Territorial Division*.
rionTi«nddd!«- 7' O Every province (excluding the presidency-towns) shall

tricts. be a sessions division, or shall consist of sessions divisions : and
every sessions division shall, for the purposes of this Code, be
a district or consist of districts.
dwSV0*™.! (8) The Local Government may alter the limits, or, with the
dwtricts. previous sanction of the Governor-General in Council, the number
of such divisions and districts.
Ss. 6-1 1.] Constitution S£? Powers of Courts. 7
(3) The sessions divisions and districts existing when this Code sio^xs'!,tan,d:
comes into force shall bo sessions divisions and districts respective- tricts maintain,
ly, uuless and until they are so altered. edtl a'tcrea-
(4) Every presidency-town shall, for the purposes of this Presidency^

Code, lie deemed to he a district. deemed districts
8> (/) The Local Government may divide any district out- r££$& di>,^
side the presidency-to »vns into subdivisions, or make any portion subdivisions,
of any such district a subdivision, and may alter the limits of any
subdivision.
(2) All existing subdivisions which are now usually put under jjviSio!!sKum!n-
the charge of a Magistrate shall be deemed to have been made tained.
under this Code.
C. — Courts and Offices outside the I1residency -towns.
9. (1) The Local Government shall establish a Court of Ses- c«..rtoi***m.
sion for every sessions division, and appoint a Judge of such
Court.
(2) The Local Government may, by general or special order

in the official Gazette, direct at what place or places the Court of
Session shall hold its sitting ; but, until such order b3 made, the
Courts of Session shall hold their sittings as heretofore.
(3) The Local Government may also appoint Additional Ses
sions Judges and Assistant Sessions Judges to exercise jurisdiction
in one or more such cjurts.
(4) A Sessions Judge of one sessions division may be appoint
ed by t'ie Local Government to be also an Additional Sessions
Judge of another division, and in such case he may sit for the
disposal of cases at such phace or places in either division as the
Local Government may direct.
(•5) All Courts of Session existing when this Code comes into
force shall be deemed to have been established under this Act.
10. (/; In every district outside the pres'deney-towns the t™,£ict
Local Government shall appoint a Magistrate of the first class, who
shall be called the District Magistrate.
(2) The Local Government may appoint any Magistrate of
the first class to be an Additional District Magistrate for a period
not exceeding six months, and such Additional District Magistrate
shall have all or any of the powers of a District Magistrate under
this Code as the Local Government may direct.
Officers t«m-
11. Whenever, in consequence of the office of a District £™r«y to s<£.
Magistrate becoming vacant, any officer succeeds temporarily to "'gj;*!^ °5£*
the chief executive administration of the district, such officer shall, gutrat*
8 Constitution & Powers of Courts. [Chap. II.
pending the orders of the Local Government, exercise all the

powers and perform all the duties respectively conferred and
imposed by this Code on the District Magistrate.
M«ist°rato™te (7) The Local Government may appoint as many per
sons as it thinks fit, besides the District Magistrate, to be Magis
trates of the first, second or third class in any district outside the
presidency-towns ; and the Local Government, or the District Ma-
ofterjurisdSc* gistrate subject to the control of Local Government, may. from
tion. time to time, define local areas within which such persons may
exercise all or any of the powers with which they may respective
ly be invested under this Code.
(2) Except as otherwise provided by such definition, the
jurisdiction and powers of such persons shall extend throughout
such district.
Power to put 13. (/) The Local Government may place any Magistrate
ohmmTof sub" of the first or second class in charge of a subdivision, and relieve
division. him of the charge as occasion requires.
(2) Such Magistrates shall be called Subdivisional Magis

trates.
Relegation of (3) The Local Government may delegate its powers under
this section to the District Magistrate.
Special Magis- 14. (1 ) The Local Government may confer upon any person
trates. aU QT any 0f fae powers conferred or confrrrable by or under this
Code on a Magistrate of the first, second or third class in respect
to particular cases or to a particular class or particular classes of
cases, or in regard to cases generally, in any local area outside the
presidency-towns.
(2) Such Magistrates shall be called Special Magistrates,
and shall be appointed for such term as the Local Government
may by general or special order direct
(3) With the previous sanction of the Governor-General in
Council, the Local Government may delegate, with such limita
tions as it thinks fit, to any officer under its control the power
conferred by sub-section (/;.
{4) No powers shall be conferred under this section on any
police-officer below the grade of Assistant District Superintendent,
and no powers shall be conferred on a police-officer except so far
as may be necessary for preserving the peace, preventing crime
and detecting, apprehending and detaining offenders in order to
their being brought before a Magistrate, and for the performance
by the officer of any other duties imposed upon him by any law for
the time being in force.
Ss. 12-17.] Constitution b? Powers of Courts. 9
15. (1) The LocmI Government may direct any two or more Benches of
Magistrates in any place outside the presidency-towns to sit toge- MaB1Strat<J,•
ther as a Bench, and may by order invest such Bench with any
of the powers conferred or conferrable by or under this Code
on a Magistrate of the first, second or third class, and direct it to
exercise such powers in such cases, or such classes of cases only,
and within such local limits, as the Local Government thinks fit.
(2) Except as otherwise provided by any order under this powersexercise-
s?ction, every such Bench shall have the powers conferred by this j^^^To}
Code on a Magistrate of the highest class to which any one of its di"*-
members, who is present taking part in the proceedings as a
member of the Bench, belongs, and as far as practicable shall, for
the purposes of this Code, be deemed to be a Magistrate of such
class.
16. The Local Government may, or, subject to the control ôwer to frame
of the Local Government, the District Magistrate may, from time [need Benches,
to time, make rules consistent with this Code for the guidance
of Magistrates' Benches in any district respecting the following
subjects : —
(a ) the classes of cases to bs tried ;
{f>) the times and places of sitting ;
(0 ) the constitution of the Bench for conducting trials ;
(d ) the mode of settling differences of opinion which may
arise between the Magistrates in session.
A trial under the Town Nuisance Act of 1889 was begun before a Bench Bench of Ma-
of Magistrates and adjourned. On the adjourned date the Bench was con- pistrates. Change
Btituted differently, only one Magistrate being present of those who attended ^""courtdur--'
on the first occasion ; but the trial was proceeded with and resulted in a lug a trial,
conviction. Hell, that the conviction was illegal and should be set aside.
Queen-Empren v. Basappa, I. L. K., 18 Mad., 394 (1895).
17. (/) All Magistrates appointed under sections 12, 13 Subordination
and 14, and all Benches constituted under section l5r shall be 2nd K'hS'to
subordinate to the District Magistrate, and ho may, from time to {Jjjjj'.0' M8«is~
time, make rules or give special orders consistent with this Code
as to the distribution of business among such Magistrates and
Benches ; and
(2) Every Magistrate ( other than a Subdivisional Magis- >( to ^ s^Mjvi-
trate) and every Bench exercising powers in a subdivision shall trate.
also be subordinate to the Subdivisional Magistrate, subject, how
ever, to the general control of the District Magistrate.
(3) All Assistant Sessions Judges shall be subordinate to Subordination
the Sessions Judge in whose court they exercise jurisdiction, and 2ionsVud£es to
he may. from time to time, make rules consistent with this Code as Se»tons Judge,
to the distribution of business among such Assistant Sessions
J udges.
10 Constitution is Powers of Courts. [Chap II.
(4) The Sessions Judge may also, when be himself is

unavoidably absent or incapable of acting, make provision for
the disposal of anv urgent application by an Additional or Assist
ant, Sessions Judge, or, if there be no Additional or Assistant
Judge, by the District Magistrate, and such Judge or Magistrate
shall have jurisdiction to deal with any such application.
(5) Neither the District Magistrate nor the Magistrates or
Benches appointed or constituted under sections 12, 13, 14 and 15,
shall be subordinate to the Sessions Judge, except to the extent
and in the manner hereinafter expressly provided.
ofh'fcriw' court A Magistrate, who is subordinate to Subdivision Magistrate, is also subor-
to the District dinate to the District Magistrate within the meaning of Criminal Procedure
Magistrate. Code, 1882, section 528. Thaman Chetti v. Alagirt Chetti, I. L. P.., 14 Mad., 390
(1890).
minM "courta— A Magistrate of a District is competent under section 435 of the Criminal
Magistrate o! Procedure Code, 1882, to call for and deal with the record of any proceeding
lSr '•ilf'lw1- before
nTerinquiry.Ur' Ghose v.anyDukhini
Magistrate
Btwa,ofI.whatever
L. R., 12 class
CaL, in
(F.hisB.)own
473 District.
(1886). Upendro Nath
'■8In'h,Ti0rd~ A Magistrate of the first class is, within the meaning of section 437 of the
natc-" "rirnt- Criminal Procedure Code, 1882, " subordinate " to the Magistrate of the Dis
class Magistrate trict who is therefore competent to call for the record of the former . and to
ioSjStrato of deal with il under 8ection 437- Queen-Empress v. Laskari, I. L. R., 7 AU.,(F.
District. B.) 853 (1885).
tniifaYecour?,r- Tlie conlP'ainants 'n t,lis ease charged a number of persons under section
Power of Dis- 448, Penal Code, and the first class Magistrate before whom the case came, find-
trict Magistrate ing an absence of criminal intent, discharged the accused. The Magistrate
to order a fresh of the District, actinf, UIuier 8ectjon 437) Act X o£ 1882i t]jre,.tc i an enqi,iry
before another Magistrate, upon which the accused persons applied fir revision
of his order, on the ground, inter alia, that it was made without jurisdiction.
Held, approving the Full Bench decision in I. L. R., 8 Mad. 18, and the de
cision in I. L. It., 9 Bom. 100, that all Magistrates and Courts which are made
subordinate to the Magistrate of the District by section 17 of Act X of 1882,
are inferior Criminal Courts in respect of him in the terms of section 435, arid
that therefore the District Magistrate in the present case was acting illegally in
calling for the record under the provisions of that section, and then of taking
action under section 437 of the Code. Shans-ud-din Khan v. Pir Ala Joir-
ya, Punj. Rec, 1885, 82.
iJMUFltl, JlaaiP Under section 435 of the Code of Criminal Procedure, 1882, a District Ma-
to'revUe0*6")- &'8trate nM power to CHH for and examine the record of a proceeding before
r°edîi«sof Sub- a Subdivisional Magistrate of the first class. In repetition of Pudmanubba,
Divisionalof Mn.
(tistrate the I L. R.,' 7 Mad.,' v(F. B.)' 18 (1884).
v '
D^tri'T'm i«- '^'ie Court of a Magistrate of the first 17
trate'C superior to that of the District Magistrate,—section class is inferior
of the Criminaland so' ordinate
Procedure Code
to the first class (Act X of 1882) expressly providing that all Magistrates of whatever class
MOTunKofCthe B'la" ê subordinate to the District Magistrate. The District Magistrate is
term -inferior-" superior, in respect of the executive as well as judicial functions, to all other
District si: 'Is5 Magistrates. Where a Magistrate of the first class discharged, under sec-
trate'for com- tion 209 of the Criminal Procedure Code (Act X of 1882), a person charged
mittal of a per- with an offence exclusively triable by the Court of Sessions, and the District
"bv flrefdass1 Magistrate directed him, under section 436, to commit the accused to the
"Magistrate— Court of Session, and a commitment was made, but the Sessions Judge re-
conimitnionStUCh ferred the case> un(ler section 215, for the orders of the High Court,—Held,
that the order of the District Magistrate under section 436 was not ultra vires,
Ss. 1 8-2 1.] Constitution & Powers of Courts. n
and that the commitment thereunder to the Court of Sessions was good, and
could not be quashed under section 215. The term "inferior" as used in the
Code means statutable incompetent to hold or exercise equal powers, and
carries with it the idea of subordination, which latter means "inferior in
rank." Queen- Empress v. Pirya Uopul, I. L. H., 9 Bom., 100 (1884).
D. — Courts oi Presidency Magistrates.
18. (J) The Local Government shall, from time to time, ^^"'"e"^
appoint a sufficient number of persons (hereinafter called Presi- Magistrates,
dency Magistrates) to be Magistrates for each of the presidency-
towns, and shall appoint one of such persons to be Chief Presi
dency Magistrate for each such town.
(2) The powers of a Presidency Magistrate under this Code
shall b3 exercised by the Chief Presidency Magistrate, or by a
salaried Presidency Magistrate, or by any other Presidency Ma
gistrate empowered by the Local Government to sit singly or by
any Bench of Presidency Magistrates.
19. Any two or mora of such persons may (subject to the Benches,
rules made by the Chief Presidency Magistrate under the power
hereinafter conferred) sit together as a Bench.
20. Every Presidency Magistrate shall exercise jurisdiction Locni limits of
in all places within the presidency-town for which he is appointed iurisd,ct'°"-
and within the limits of the port of such town and of any navig
able river or channel leading thereto, as such limits are defined
under the law for the time being in force for the regulation of ports
and port-dues.
21. (/) Every Chief Presidency Magistrate shall exercise denê<
within the local limits of his jurisdiction all the powers conferred trate.
on him by this Code, or which by any law or rule in force imme
diately before this Code comes into force are required to be exer
cised by any Senior or Chief Presidency Magistrate, and may, from
time to time with the previous sanction of the Local Government,
make rules consistent with this Code to regulate—
(n) the conduct and distribution of business and the practice
in the Courts of the Magistrate of the town ;
(l>) the times and places at which Benches of Magistrates shall
sit ;
(c) the constitution of such Benches ;
(rf) the mode of settling differences of opinion which may arise
between Magistrates in session ; and
(e) any other matter which could be dealt with by a District
Magistrate under his general powers of control over the
Magistrates subordinate to him.
12 Constitution $3 Powers of Courts. [Chap. II,
(2) The Local Government may, for the purposes of this

Code, declare what Presidency Magistrates are subordinate to the
Chief Presidency Magistrate, and may define the extent of thrir
subordination.
K. — Justices oj the Pence
i'"ceCCforf till The Governor-General in Council, so far as regards the
Mutassai. whole or any part of British India outside the presidency-towns,
and every Local Government, so far as regards the territories
subject to its administration (other than the towns aforesaid;,
may, by notification in the official Gazette appoint such
European British subjects as he or it thinks fit to by Justices of
the Peace within and for the territories mentioned in such notifi
cation.
Peace""^' the ê ôca^ Gr°vernment. so far as regards the towns of
e Calcutta, Madras and Bombiiy, may, by notification in the official
Gazette, appoint to be Justices of the Peace within the limits of
the town mentioned in such notification any persons resident with
in British India and not being the subjects of any foreign State
whom the Loc.il Government thinks fit.
Present Jus 2Am (/) Every person now acting as a Justice of the Peace
ticos of the
Peace. within and for any part of British India other than the said
towns, under any commission issued by a High Court, shall be
deemed to have been appointed under section 22 by the Governor-
General in Council to act as a Justice of the Peace for the whole
of British India other than the said towns.
{2) Every person now acting as a Justice of the Peace within
the limits of any of the said towns under any such commission
shall be dee ned to have been appointed under section 23 by tha
Local Government-
Ex-ogiao jus- In virtue of their respective offices the Govcrnor-Gene-
tices of the , . ~ r , ,, . .
Peace. ral, Governors Lieutenant-(jrovernors ana Cniei Commissioners,
the Ordinary Members of the Council of the Governor-General,
the Judges of the High Courts and the Recorder of Rangoon are
Justices of the Peace within and for the whole of British India
Sessions Judges and District Magistrates are Justices of the Peace
within and for the whole of the territories administered by the
Local Government under which they are serving, and the Presi
dency Magistrates are Justices of the Peace within and for the
towns of which they are respectively Magistrates.
F.—Suspension and Removal.
and removni'ot 16. All Judges of Criminal Courts other than the Hi^h
Slst5Ste"nd Ma" Courts established by Royal Charier, and all Magistrates, may be
suspended or removed from office by the Local Government :
Ss. 22-29.] Constitution y Powers of Courts. 13
Provided that such Judges and Magistrates as now are liable

to be suspended or removed from office by the Governor-General
in Council only shall not be suspended or remove 1 from office by
any other authority.
VJ. The Governor-General in Council may suspend or re- Suspension and
move from office any Justice of the Peace appointed by him, and tices of the
the Local Government may suspend or remove from offic3 any Poace-
J ustice of the Peace appointed by it.
CHAPTER III.
Powers of Courts.
A —Description of Offences cognizahle by each Court.
28. Subject to the other provisions of this Code, any offence offences under
under the Indian Penal Code may be tried— Pensl Cbde-
(a) by the High Court, or

(h) by the Court of Session, or
[r.) by any other Court by which 9uch offence is shown in the
eighth column of the Second Schedule to be triable.
Illustration.
A is committed to the Sessions Court on a charge of culpable homicide. He
may be convicted of voluntarily causing hurt, an offence triable by a Magis
trate.
" This section is a general section, which, subject to the other provisions Addition of
of the Coile, gives power to the High Court and the Court of Session to try charge triablu by
nny offence under the Indian Penal Code ; and it also enacts that any offence apowerPof"ses-
under the Indian Penal Code may be tried by any other Court by which mom Judge to
such offence is shown in the eighth column of the Second Schedule to be tried. add "Jjy1^8 and
The provision as to the other Courts does not cut down or limit the jurisdic
tion of the High Court or the Court of Session " Queen- Empress \. Ktiarga,
I. L. R., 8 All., p. 607 (1880).
2.9. (7 ) Subject to the prov.sions of section 447, any offence offences under
under any other law shall, when any Court is mentioned in this other laws,
behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the
High Court or by any Court constituted under this Code by which
such offence is shewn in the eighth column of the Second Schedule
to be triable.
[83 (Act No. Ill of 1877). A prosecution for any offence under [Registering
this Act coming to the knowledge of a registering officer in his official officer may corn-
capacity may be commenced by, or with the permission of, the Inspector- Sons] pr08ecu"
General, the Branch Inspector-General of Sind, the Registrar, or the
Sub-Registrar in whose territories, district, or sub-district, as the case
may be, the offence has been committed.
14 Constitution fcf Powers of Courts. [Chap. III.
Offences punishable under this Act shall be triable by any Court or

Officer exercising powers not less than those of a Magistrate of the
second class:
Provided that, in imposing penalties under this Act, no such Court
or Officer shall exceed the limits of jurisdiction prescribed by the law for
the time being in force as to such Court or Officer.
All fines imposed under this Act may be recovered in the manner
provided by the law for the time being in force for the recovery of fines
imposed by Criminal Courts.]
registration Section 29 of the Code of Criminal Procedure, 1882, does not affect the
Act. section 88- jurisdiction given to second class Magistrate by section 83 of the Indian Re-
ôndcii°s °f gistration Act, 1877, as amended by Act XII of 1879. The Queen-Empress v.
Magistrate. Krishna and others, I. L. R., 7 Mad., 347 (1884).
qttences not 30. In the territories respectively administered by the Lieu-
Seath. cw" tenant-Governors of the Punjab and Burma and the Chief Com
missioners of Oudh, the Central Provinces, Coorg and Assam, in
Sind, and in those parts of the other provinces in which there are
Deputy Commissioners or Assistant Commissioners, the Local Go
vernment may, notwithstanding anything contained in section
25), invest the District Magistrate or any Magistrate of the first
class with power to try as a Magistrate all offences not punishable
with death.
Cases triable ^ District Magistrate, empowered under section 30, Act X of 1882, may
by I'istrict try all offences not punishable with death, but he cannot try an offence punish-
Magistrates. ttDle with death. Queen-Empress v. Gurdil Singh, Punj. Rec. 1891, 8.
Offence ori*i- The accused were charged before a Magistrate of the second class with
nally cognizable causing grievous hurt as members of an unlawful assembly under sections 149
class Mndstrate an(1 325 of the PenalCo,!e- Tlie evi<lence showed that one of the accused
—Subsequently had used an axe in causing tho hurt. The Magistrate apparently ignored this
b^rcnson'of'an ct' an(' 'ie conv'cte^ tne accused under section 325 of the Code. The ac-
aggravating c?£ cused appealed. The District Magistrate who heard one appeal, and the first
cnn)stnncer clasH Magistrate who heard the rest of the appeals, were both of opinion that
ferior "'court— tne offence committed by the accused was one of causing grievous hurt with a
Practice-High dangerous weapon, within the meaning of section 326 of the Penal Code, and
^nTr! '"n*! °f as 8Ucn> beyond the jurisdiction of the second class Magistrate. But they did
ju er eronce. think it proper under the circumstances of the case to quash the convic
tions- The Sessions Judge on examining the record of the case was of opi
nion that as the offence committed by tho accused was not cognizable by the
trying Magistrate, his proceedings were void ab initio under section 530 of the
Code. He, therefore, referred the case to tho High Court, and recommended
that the convictions under section 325 should be set aside. Held, that the
proceedings before the second class Magistrate were not void ah initio as ho
had jurisdiction to try the accused for offences punishable under sections 149
and 325 of the Penal Code with which they were originally charged. Held,
also, that though it was the duty of the trying Magistrate, when the evidence
disclosed a circumstance of aggravation, such as the use of a dangerous wea
pon which made the offence cognizublc by a higher Court, to adopt the pro
per procedure to send the case to the higher Court, still it was not necessary
to quash the proceedings, as the accused were not in any way prejudiced, and
tho sentences wore not inadequate. Queen-Empress v. Gwidya, I. L. R., 13
Bom., 502 (1889).
Ss. 3C-32.J Constitution & Powers 0/ Courts. 15
An officer invested with special powers under section 34 of the Code of Jurisdiction-
Criminal Procedure, 1882, should rarely, if ever, try a case himself under Oiflecr 'n^tc*
section 209 of the Code, where it appears from some of the evidence that the powers
accused might have been charged with an offence beyond the jurisdiction of
the Magistrate to take cognizance of. Empress v. Parmananda, 1. L. It., 10
Cal., 85 (1883).
B.— Ssnttnce* tr/ilcb may be pateid by Courts of carious elattes.
, n 31. v(/)' A High6 Court may J pass

1 any
J sentence authorised which
Sentence*
H Uh
by law. Courts and Ses-
in a ci • Ti i i. ■ in* xi sions Judges
(a) A Sessions Judge or Additional Sessions Judge may may pass,
pass any sentence authorised by law ; but any sentence of death
]»assod by any such Judge shall be subjec" to cmfirmation by the
High Court.
(3) An Assistant Sessions Judge may pass any sentence au
thorised by law, except a sentence of death or of transportation for
a term exceeding seven years, or of imprisonment for a term ex
ceeding seven years.
Applications under Chapter XXXII of the Code of Criminal Procedure, J0'"'^"
1882, cannot I>c referred to a Joint Sessions Judge under section 193, clause "chapter
2, of the Code, so as to make it competent for a Joint Sessions Judge to XXXII -S e s-
dispose of them— a Joint Sessions Judge being strictly precluded from ?^JJ"r Ja"
exercising any of the powers under Chapter XXXII of the Code, andrect disposal
section 193, clause 2, contemplating only cases for trial. In re reference by b,v Joint Ses~
the Sessiotis Judge of Sural, I. L. R., 9 Bom., 352 (1885). ^h8
On the 9th of December 1882, a person was convicted under sections tl<B^pCOi 0f Act
457 and lOd of the Penal Code, and sentenced to three years' rigorous impri- —Appeal to
sonment by a Deputy Magistrate of Assam, exercising special powers under jj'^jj QroUrfg
section 38 of the Co le of Criminal Procudure, 1872. The new Code of Cri- Re v i s i o n a 1
minal Procedure, 1832, came into force on the 1st of January, 1883. The Jurisdiction,
prisoner presented an appeal to the High Court from the conviction and
sentence above mentione I on the 23rd of January, 1883. field, by Field,
J., (Mitter, J , expressing no de 'ided opinion) that the case was governed
by secti >n 40s of the Co le of Criminal Proce lure, and that no appeal lay
t ) the High Court. Held, by the Court, that the case was a fit one for the
exercise of the High Court's Kevisional Jurisdiction, and should be dealt with
under the powers conferre 1 on the High Court by virtue of that jurisdiction.
Rongai v. The Enpress, I. L. R., 9 Cal., 513 (1883).
An order of a Magistrate retaining parties in possession of land can j0iut Sessions
only be p isse 1 after due judicial inquiry, as required by the Code of Crinii- Judse-Jurisdic-
nal Procedure. 1872, section 530. A Joint Sessions Judge has no power to l™" ] toin jJJJJj
act in such cases under section 295, which applies only to the Sessions dispute case.
Judge of the Division. Shoinloo Noshyo, agent of Joggeshur Singh, v.
Rung Lall Jhah, 25 W. R., Cr. 21 (1876).
32. (/) The Courts of Magistrates may pass the following sentences
sentences, namely : — trateYmay paw.
(a) Courts of Presi- ! Imprisonment for a term not exceeding
dency Magis- \ two years, including such solitary
trates and of confinement as is authorised by law ;
Magistrates of J Fine not excee ling one thousand rupees;
the first class : I Whipping.
16 Constitution y Powers of Courts, [Chap. Ill,
l Im prisoument for a term not exceeding

(l>) Courts of Ma- \ six months, including such solitary
gistrates of < confinement as is authorised by law ;
the second / Fine not exceeding two hundred rupees ;
class: ( Whipping (if specially empowered).
(c) Courts of Ma- I Imprisonment for a term not exceeding
gistrates of 1 one month ;
the t h i r d j Fine not exceeding fifty rupees,
class :
(2) The Court of any Magistrate may pass any lawful sen
tence, combining any of the sentetieas which it is authorised by
law to pass.
(3) No Court of any Magistrate of the second class shall pass
a sentence of whipping unless it is specially empowered in this
behalf by the Local Governm3nt.
[Solitary con- [73 (p. c.) Whenever any person is convicted of an offence for
nemo which under this Code the Court has power to sentence him to rigorous
imprisonment, the Court may, by its sentence, order that the offender
shall be kept in solitary confinement for any portion or portions of the
imprisonment to which he is sentenced, not exceeding three months in
the whole, according to the following scale, that is to say—
A time not exceeding one month, if the term of imprisonment
shall not exceed six montlis.
A time not exceeding two months, if the term of imprisonment
shall exceed six mouths, and shall not exceed one year.
A time not exceeding three months, if the term of imprisonment
shall exceed one year.]
[Limit^so- [74 (p. (J.) In executing a sentence of solitary confinement, such
nient.] C°" n°~ confinement shall in no case exceed fourteen days at a time, with inter
vals between the periods of solitary confinement of not less duration
than such period ; and when the imprisonment awarded shall exceed
three months, the solitary confinement shall not exceed seven days in
any one month of the whole imprisonment awarded, with intervals
between the periods of solitary confinement of not less duration than
such periods.]
Summary trial It is not illegal to impose solitary confinement as a part, of the sentence
nntmentf C°n' in a caae tried summarily. Emprtti v. Annu Khan, I. L. R., 6 AH., 83 (1883).
Power of Ma- 33. (/) The Court of any Magistrate may award such term
tence to impri- of imprisonment in default of payment of fine as is authorised
tad?of flm^*" by law in case of such default :
Provided that —
(a) the term is not in excess of the Magistrate's powers un
der tlrs Code :
S- 33.] Constitution & Powers of Courts. 17
(b) in any case decided by a Magistrate where imprisonment Jj?^™^,,,10

has been awarded as part of the substantia sentence, the period of
imprisonment awarded in default of payment of the fine shall not
exceed one-fourth of the p3riod of imprisonment which such Ma
gistrate is competent to inflict as punishment for the offence other
wise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section mayjbe in
addition to a substantive sentence of imprisonment for the maxi
mum term awardable by the Magistrate under section 32.
[64 (P. C.) In every case of an offence punishable with imprison- f^JjSem e n°t
ment as well as fine, in which the offender is sentenced to a fine, in default of
whether with or without imprisonment, and in every case of an offence flne.]
punishable with imprisonment or fine, or with fine only, in which the
offender is sentenced to a fine, it shall be competent to the Court which
sentences such offender to direct by the sentence that, in default of
payment of the fine, the offender shall suffer imprisonment for a certain
term, which imprisonment shall be in excess of any other imprisonment
to which he may have been sentenced, or to which he may be liable un
der a commutation of a sentence.]
[65 (P. C.) The term for which the Court directs the offender Srmof 'imprt-
to be imprisoned in default of payment of a fine shall not exceed ^""tn' f° pay-
one-fourth of the term of imprisonment which is the maximum fixed ment of fine,
for the offence, if the offence be punishable with imprisonment as well
fence is punish-
rs nne*J
aS fine 1 able with im-
prisonment as
well as line.]
[66 (P. C.) The imprisonment which the Court imposes in default [Descr iption
of payment of a fine may be of any description to which the offender °'cnt "^'"^ch
might have been sentenced for the offence.] defauit.j
[67 (P. C.) If the offence be punishable with fine only, the [Jf™m°f,t Z'T
imprisonment which the Court imposes in default of payment of the default in pay-
fine shall be simple, and the term for which the Court directs the "gen the of-
offender to be imprisoned, in default of payment of fine, shall not !™™ ^^"fluo
exceed the following scale, that is to say, for any term not exceeding only.]
two months when the amount of the fine shall not exceed fifty rupees,
and for any term not exceeding four months when the amount shall
not exceed one hundred rupees, and for any term not exceeding six
months in any other cases.]
[68 (P. C.) The imprisonment which is imposed in default of [S u c h impri
payment of a fine shall terminate, whenever that fine is either paid, or minate" ni»n
levied, by process of law.] ZIT* °' th"
T69 CP. C.*) If, before the expiration of the term of imprisonment [Termination of
fixed in default of payment, such, a proportion .« of»xi.£
the tine Ube paid,
"j mc„t
such upon
nnprison-
pay
or levied, that the term of imprisonment, suffered in default of pay- "^"'p^Tf
ment, is not less than proportional to the part of the fine still unpaid, Hue.J
the imprisonment shall terminate.]
18 Constitution & Powers of Courts. [Chap. III.
fFme may be [70 (P. C.) The fine, or any part thereof which remains unpaid,
»?x years or""" may 00 levied at any time within six years after the passing of the
any time term
inn tl» dur- sentence,. * the offender
J, be liable.. to imprisonment
r. , ,, for a longer
.. cperiod
Au t
o( imprison- than six years, then at any time previous to the expiration 01 tnat
[Death of of- Per'°d i a»d the death of the offender does not discharge from the
fonder not to liability any property which would, after his death, be legally liable for
property from his debts.]
liability.]
Imprisonment Section 33 of the Code of Criminal Procedure, 1832, does not authorize
in default of a Magistrate to pass a sentence in default of payment of tine in excess of the
payment of line. terra pregWi5ej uy îon 65 0f the Penal Code Queen-Empress v. VenkaCe-
sajaiu, I. L. K., 10 Mai., (F. B.) 165 (1887).
Bengal Excise Tlie provisions of section 74 of the Bengal Excise Act as to additional
Act vn of 1878- punishment, where there has been a " previous conviction for a like offence,"
isliuleut! contemplate merely the case of the offender having been already convicted of
an offence punishable with a fine of Rs. 200 or upwards, and being again con
victed of another offence punishable with the same punishment ; it i» not
necessary that he should have been previously convicted of the same offence.
Mam Chandra Shaw v. Empress, I. L B., 6 Cal., 575 (1880).
Imprisonment Section 309 of the Criminal Procedure Code, 1872, does not extend the
pnynrent'of Hue. Pe"°d °f imprisonment which may be awarded by a Magistrate under section
05 of the Penal Code, it only regulates the proceedings of Magistrates whose
powers are limited. The Empress v. Darba, I. L. R., 1 All., (F. B.) 461
(1877).
Pine-Refund. A prisoner was sentenced to imprisonment and fine, and in default of
payment of the latter, to a further term of imprisonment. He paid a portion
of the fine, but, that fact not having been communicated to the jailor, under
went the entire further term of imprisonment. Held, that under these cir
cumstances the Court had no power to order the fine to be refunded. Regina
v. Nutha Mula, 4 Bom. H. C. 37 (1867).
Higher powers 34. Tho Court of a Magistrate, sp^c'ally empowered onder
of certain Dis- ,. " 0 • 1 v 1 1
trictMaitis- section 30, may puss any sentei ca authorised by law, except a
,r,t " sentence of death or of transportation for a term exceeding seven
years, or imprisonment for a term exceeding seven years.
Jurisdiction— An officer invested with special powers under section 34 of the Code of
Sith^pecufi1^ Criminal Procedure, 1882, should rarely, if ever, try a case himself under section
wers Sections 209 of tlie Co le, where it appears from some of the evidence that the accused
rod** "crimi? Ini£nt ,lave Dcon charge 1 with an offence beyond the jurisdiction of the
nai e Procedure Magistrate to take cognizance of. Empress v. Parmanancta, I. L. R., 10
<Act X of 1882). CaL, 85 (1883).
sentence in 35. (7) Whon a person is convicted at one trial of two or
ttorofTeverai more t,istinct offences, the Court may sentenca him, for such
offences at one offences, to the several punishments prescribed therefor which
r" such Court is competent to inflict ; such punishments, when
consisting of imprisonment or transportation, to commence the
onp after the expiration of the other in such order as the Court
muy direct, unless the Court directs that such punishment shall
run concurrently.
(2) In the case of consecutive sentences, it shall not be
necessary for the Court, by reason only of the aggregate punish
ment for the sevral offences being in excess of the punishment
Ss. 34-35.] Constitution & Powers of Courts. 19
which it is competent to inflict on conviction of a single offence,

to send the offender for trial before a higher Court :
Provided as follows : —
(a)
v ' in no, c case , shall such. fperson
,■ * be .sentenced to imprison-
1 ?*B
terrax of>,mpunish-
um.
inent tor a longer period than fourteen years : mont.
(6j if the case is tried by a Magistrate (other than a Magis
trate acting under section 31), the aggregate punishment
shall not exceed twice the amount or punishment which he
is, in the exercise of his ordinary jurisdiction, competent
to inflict.
(3) For the purpose of appeal, aggregate sentences passed un
der this section in case of convictions for s veral offences at one
trial shall be d> emed to be a single sentence.
Explanation. — Separable offences which come within the

provisions of section 7 1 of the Indian Penal Code arc not distinct
offences withiu the meaning of this section.
Illustration.
A breaks into a house with intent to commit theft and steals property
therein. A has not committed distinct offences.
When a prisoner is convicted of rioting and of hurt, and the conviction Sentence—Se-
for hurt depends upon the application of section 149 of the Penal Code, it is prate sentences
not illegal to pass two sentences, one for riot and one for hurt ; provided the gri^SS'hurt? •
total punishment does not exceed the maximum which the Court might pass
for any one of the offences. When, however, the accused is guilty of rioting,
and is also found to have himself caused the hurt, he may bo punished botli
for rioting and for hurt. In such a case the total punishment can legally
exceed the maximum which the Court might pass for any one of the offences.
Queen- Empress v. Bana, LL.B, 17 Bom., 260 (1892).
Eight persons, who were charged with a number of others, were tried on Cumulative
servant from his duty (sections 332 and 333). The common object set out in foJVotins'and
the charge was " to resist the execution of a decree obtained by Suresh Chandcr causing hurt
Deb against Shaik Ali Yar in the Court of the second Subordinate Judge of Ali- *nd grievous
pur, dated 30th April, 1891, and also by means of criminal force oi show of ur '
criminal force to overawe the members of the police force in the execution of
their lawful powers as police officers ;" and it was held that resistance to the po
lice was one of the component parts of the offence of rioting charged. At the
trial in the Court of Session all eight accused were convicted of the offence
charged under section 148, and each was sentenced to the maximum punishment
allowed under that section, viz., three years' rigorous imprisonment. Seven out
of the eight were convicted of offences under section 152, and sentenced each
to an additional term of two years' rigorous imprisonment for those offences.
Two out of the seven accused were further convicted under section 332 of the
Penal Code, the hurt therein charged being caused to police officers engaged
in suppressing the riot, and each sentenced to a further additional term of two
years' rigorous imprisonment for that offence The eighth accused, who was
not convicted of an offence under section 152, was convicted of an offence
20 Constitution & Poweis of Courts. [Chap. III.
mulcr section 333, the grievous hurt being similarly caused to a police officer,
and for that offence whs sentenced to hve years' rigorous imprisonment in
addition to the sentence of three years passed on bira tinder section 148. It was
contended on appeal— (1) That the sentences passed under section 152 in
addition to those under section 148 were illegal (2) That separate sentences
under sect ion 152 and sections 332 and 333 were illegal. (3) That the
cumulative sentences under section 148 and sections 332 and 333 were illegal in
so far as they exceeded the maximum sentence provided for either of the
offences. Held, as regards (1), that as resistance to the police was one of the
component parts of the offence of rioting, of winch the accused were
convicted and sentenced to the maximum punishment provided by section
148, and having regard to the provisions of section 71, the additional sen
tences under section 152 were illegdl,— Held, further, that section 152
contemplates an assault or obstruction to some particular public servant,
and that as the charge against the accused as framed was merely to the
effe.-t tlmt they assaulted and obstructed members of the police force in
the discharge of their duties, etc., the conviction under that section could
not be upheld. Held, as regards (2), that separate sentences under sec
tion 152 and sections 332 and 333 were illegal, as the hurt inflicted on the
police officers was the violence used towards them which constituted the
essence of the offence UDder section 152. field, as regards (3), that the
separate sentences passed under section 148 and sections 332 and 333 were not
illegal, there lming nothing in section 71 of the Penal Code which limits the
amount of punishment that may be imposed for these offences. Ferasat
v. Queen-Empress, I. L. R , 19 Cal., 105 (1891).
toncc? fVôt- Fer âr'am (Tottenham, J., dissenting):—Separate sentences passed upon
ing and griev- persons for the offences of rioting and grievous hurt are not legal where it is
oua hurt. found that such persons individually did not commit any act which amounted
to voluntarily causing hurt, but were guilty of that offence under section 149
of the Penal Code. Nilmany Poddar v. Queen-Empress, I. L. R., 16 Cal.,
(F B.) 442 (1889).
Cu nulla tire Six accused persons wore charge:! with and convicted of rioting, the
fni- District oil" common object of which was causing hurt to two particular men. Four of
eiices—Convic- the accuse:! were also charged with, and convicted of, respectively, causing
amlcauKM^hiin m,rt (',,r'Qg' ,no r'ot to the two men and a woman, and were sentenced to
and grievous separate terms of imprisonment under sections 147 and 323 of Penal Code,
hurt—Sep irate Held, that the sentences were legal. During the course of a riot, in which X
TOoro' t'hHii one was attacked and beaten by several of the rioters, one of them K inflicted
oHenco w lie n grievous hurt on X by breaking his rib with a blow struck with a lathi ; K
form oôflen' '•ntl ""'ee otl,el's of tne rioters were charged with offences under sections 147
c e- Abetment and 325 of the Penal Code, an 1 K was convicted under those sections. The
of grievous liurt other three were convicted under section 147 and also under section 325 read
during not. witj) 80ct;on i,)f) Separate sentences were passed on K and also on the
other three for each of the offences. Held, that the sentences on K were
legal, but that as there was nothing to show that the other three had abetted
the particular blow whieh caused the grievous hurt, although they had each
of the:n asjaulto 1 -V, the conviction of them under section 325 read with
section 109 could not bo supported. In. the matter of Mahur Mir v. The
Queen- Empress, I. L. R., 16 Cal., 725 (1889).
' Distinct often- A poison convicted under sections 411 75 of the Penal Co lo is not eon-
ces " victel of "distinct offences" within the meaning of section 35 of the Crimi
nal Procedure Code 1882. Queen-Empress v. Khalak, I. L. R-, 11 All., 393
(1889).
Separate con- An accused person was convicted under section 457 of the Penal Code
virtioiM fordid- of house-breaking l>v night in order to commit an offence (mischief and
trwraafo'trauj'- as9RuIt) and also under sections 426 and 352 for the offences of mischief and
action. assault, and punished separately for each offence. These offences formed parts
S. 35.] Constitution W Powers of Courts.
of one transaction. Held, tliat tlie sentences were legal. Queen- Emprea v.
Xirichan, I. L. R., 12 Mud., 3G (1888).
Section 149 of tlie Penal Code creates no offence, but was intended to ou°Hmr7G™in-
make it clear that an accused person whose case falls within its terms cannot niitted in the
put forward the defence that he did not with his own hand commit the offence course of riot
committed in prosecution of the common object of the unlawful assembly, JJJJ, tnecom-
or such as the members of the assembly knew to be likely to be committed in uiouolijcct-Dis-
prosecution of that object. In prosecution of the common object of an s^rat"e"c^,77
unlawful assemble, M, with his own hand, caused grievous hurt. M and tenccs.
other members of the assembly, as to whom it did not appear whether or not
any of them personally used force or violence, were convicted of rioting
under section 147 and grievous hurt under section 325 of tlie Penal Code, and
were each sentenced to separate terms of imprisonment for each offence.
The highest aggrcgute punishment, which was M's, was six years' rigorous
imprisonment, being one year for rioting and live years for causing
grievous hurt. Held, that assuming section 71 of tlie Penal Code to be
applicable, the sentences were not illegal, as the combined periods of
imprisonment did not, in the case of any prisoner, exceed the maximum
punishment of seven years' rigorous imprisonment, which could have been
awarded for the offence punishable under section 325. Held, also, that the
riot could not, in any of the cases, lie considered a part of the offence under
section 325, that section 71 did not apply, and that tlie sentences were legal.
Queen-Empreu v. BUhuuxir, I L. R., 9 All., 645 (1887).
When more than one offence is proved in respect of which the accused has rcs-Conv?otk>n
been charged and tried, a conviction for each such offence must follow, wlie- for eao|, 0ffenco
ther section 71 of the Penal Code applies to the case or not ; and, subject to the proved n ece s-
provisions of section 71, a separate sentence must be passed in respect of each ^Jêo^—Son-
such conviction. Under section 35 of the Criminal Procedure Code, sentences of tence necessary
imprisonment cannot be passed so as to run concurrently. In a trial for offences "jj!5'i101|!"cl1 co,"~
under sections 170 and 383 of the Penal Code, committed in the same transac
tion, it appeared that but for personating a public servant the accused would
not have been in a position to commit the act of extortion complained nf. Held,
that the first and second paragraphs of section 71 of the Penal Code did not
apply to the case ; that the third paragraph also did not apply, because the words
"constitute an offence" refer to the definitions of offences contained in tlie Code,
irrespective of the evidence whereby the acts complained of are proved, und
personating a public servant as defined in section 170 was not a constituent
element or extortion as defined in section 383 ; that in the present case the for
mer offence was completed before the latter had begun ; and that separate sen
tences for each offence were, therefore, not illegal. Queeii-Empre** v. Wuzir
Jan, I. L. R., 10 All., 58 (1887).
Under sections 35 and 235 of Criminal Procedure Code a Magistrate may House-break -
legally pass a separate sentence of two years' rigorous imprisonment and fine in* in order to
under each of the sections 379 or 380 and 454 of the Penal Code, for house break- of ° il^Tt—Xlieft
ing in order to the commission of the theft and theft, the two offences forming —separate con-
part of the same transaction and being tried together. In such a case, where T .r tntgn'c|s_
the prisoner had been three times previously convicted,—Held, that the better Revision—Re
course would have been to commit him to the Court of Session under sections ference by Ma-
454—475 of the Code. But a Sessions Judge trying such a case under section 379 ^j^J*"p^ss(^|
or section 380 and section 454,would,under no circumstances, be justified in pass- Sessions Judge*,
ing a sentence of ten years' imprisonment under the latter part of section 454
and of four years' imprisonment under section 380. The latter portions of
sections 454 and 457 were framed to include the cases of house trespassers and
house- breakeiB who had not only intended to commit but had actually com
mitted theft. A Magistrate is not justified in referring under section 438 of
22 Constitution W Powers of Courts, [Chap. III.
the Criminal Procedure Code, orders passed by the Sessions Judge on appeal,
except in very special cases. Queen-Empresa v. Zor Singh, I. L. R., 10 All.
146 (1887).
Simultaneous The accused was convicted at one trial by a Magistrate of first class
convictions for 0f the offences of house-breaking by night with intent to commit theft
—scruince!"CCS punishable under section 457, and of theft in a dwelling-house, punish
able under section 380 of the Indian Penal Code, the two offences being
part of the same transaction, the theft following the house-breaking. The
prisoner was sentenced to two years' rigorous imprisonment nnder section
457, and to six montlis' rigorous imprisonment and a fine of Rs. 100, or in
default of p»3'ment, three months' further rigorous imprisonment, under
section 380. The District Magistrate referred the case to the High Court,
on the ground that the aggregate of punishment awarded on the two heads
of charge exceeded the powers of the first class Magistrate who tried the
case. The Sessions Judge, to whom an appeal had been preferred, was of
the same opinion, and reduced the sentence to two years' rigorous impri
sonment. Held, that ns the accused committed two distinct offences which
did not " constitute, when combined, a different offence " punishable under
any section of the Penal Code, section 71 of the Code did not apply, and as
the aggregate punishment did not exceed twice the rnncunt of punishment
which the trying Magistrate was competent to inflict, the sentences were
legal under section 35 of the Criminal Procedure Code, 1882. Per Jardinb,
J. :—The rules for assessment of pnnishmer.t, contained in section 454 of
the Criminal Procedure Code of 1872, having been omitted in section 235
of the Criminal Procedure Code of 1882, must now be sought for in sec
tion 71 of Penal Code and in section 35 of the Criminal Procedure
Code, 1882. Queen-Empresa v. Sakha Ram Bhau, 1. h. R., 10 Bom., 493
(1886).
Conviction of The offences of rioting armed with a deadly weapon and voluntarily
rioting: & caus- causing hurt with a dangert.us weapon to two persons are distinct offences,
dangerous wea^ an(^ a Person charged with such oflences can be convicted and sentenced
pons-Cumula- in respect of the rioting and of the hurt caused to each of the persons
iv°t?en,enfres- in]ure*l- A. and B were charged with rioting, armed with deadly weapons
ws-SeparaTe nnder section 148 of the Penal Code, and they were also charged under section
chaises. 324, coupled with section 149, with causing hurt by a dangerous weapon to X,
and B was further charged under section 324 with causing a like hurt to Y, A
being also charged under section 324, coupled with section 149 in respect
of the hurt caused by B to Y. A and B were convicted on all charges,
and separate sentences, to take effect in succession, were awarded in respect
of each offence charged. The offences under section 324 were commit tei
during the riot. Held, that the several acts, with regard to which the
prisoners were charged, did not fall within the provisions of section 71 of the
Penal Code, inasmuch as it was not found that the causing of the hurt
was the force or violence which alone constituted the rioting, and that conse
quently under section 235 of the Criminal Procedure Code, 1882, the several
sentences passed were strictly legal. Loke Nath Sarlcar v. (Jueen-Empreaa,
I. L. R., 11 Cal.,349 (1885).
Concurrent Where tbenccused, who was a head constable, was found guilty of making a
sentences -En- false charge under section 211, and of giving false evidence nnder section 193
sentence."1 °' °^ tne Indian Penal Code, and the Sessions Judge passed sentences of three
months' simple imprisonment for each offence, and taking into consideration
the accused's past conduct, directed that the sentences should run concurrently.
Held, that the sentenc s were inadequate and illegal. Accordingly, the sen
tences were enhanced to three months' rigorous imprisonment for each offence ;
and as the two offences were distinct, the High Court directed, under section
35 of the Criminal Procedure Code, 1882, one sentence to commence after the
cxi iration of the uther. Queen-Empress \'. Pir Mahomed, I. L. K., 10 Bom.,
254 (1885).
S- 35 ] Constitution Is Powers of Courts. 23
On the 8th August, 1884, a Magistrate of the second chuw began an muling Kiiev-
inquiry in a case in which several peraoaa were accused of rioting and of g"^ jilln*K'j~
voluntarily causing grievous hurt On the 6th September, the powers of a mcnt ror more
Magistrate of the first class were conferred on the Magistrate by an order of than oneofscvc-
Government, which was communicated to him on the 8th September. On the powcl^ °™Ma-
9th September, tlie case for the prosecution having closed, the Magistrate fram- itistmte of first
ed charges against each of the accuse 1 under sections 323 and 32) of the Penal MajStratoof
Code, recorded the statements of the accused and the evidence for the defence, aocondc lass
and, on the 10th September, convicted the accused of all the charges, passing duriiijr ^J*™'~_
upon each of them, in respect of each charge, sentences which he could pass as ^^na °fi r»t
a Magistrate of the first class, but could not have passed as a Magistrate of the clnss Miwistrnto
second cless. On appeal tlie Sessions Judge, on the ground that the prisoners 01
had committed the offenco described in section 148 of the Penal Code, held that
the sentences passed by the Magistrate were illegal, as being inconsistent with
the provisions of section 71, paragraphs 2and 4; and he accordingly reduced the
sentences to imprisonment which the Magistrate had passed to the maximum of
imprisonment which the Magistrate could have inflicted under section 148. Held,
by the Full Bench (Petmeiiam, C. J., and Brodhuiist, J., dissenting), that the
sentences passed by the Magistrate were legal. Per Oldfield, Majimood, and
Dcthoit, JJ., that, with reference to the terms of section 39 of the Criminal
Procedure Code, a Magistrate of the second class who has begun a trial as
such and continued it in the same capai ity up to the passing of sentence, and
who, prior to passing sentence, has been invested with the powers of a Magis
trate of the first class, is competent to pass sentence in the case as a Magistrate
of the first class. Per Oldfield and Ddtiioit, JJ., that the provisions of sec
tion 71 of the Penal Code had no application to the case, inasmuch as the
offences of causing grievous hurt and hurt formed no part of the offence of
riotiDg. Per Petheram, C. J., that a case must be token to be tried upon the
day the trial commences ; that, for all the purposes of the trial, the Magistrate
in this case retained the status of a Magistrate of second class ; and that he was
therefore not competent to pass sentence as a Magistrate of the first class.
Also per Pkthebam, C. J., that the Judge, in this case, had no power to alter
the charge or to frame a new charge in any way. Per Brodiiurst, J., that
the sentences passed by the Magistrate were, as a whole, illegal ; that if ho
had convicted the accused under section 148 of the Penal Code, his order
would, under the circumstances, have been legal ; that a Court of Appeal is
not competent to alter tlje finding of a Magistrate so as to convict an accuse 1
person of an offence which the Court, of which the order is in appeal, was not
competent to try ; and that a member of an unlawful assembly, some members
of which have caused grievous hurt, can be legally punished for the offence of
rioting as well as for the offence of causing grievous hurt. Empress v. Dun-
gnr Singh (I. L. K., 7 All. 29). Queen Empress v. Pershad I L R., 7 All.,
(F. B.) 414 (1885).
Three persons who were convicted (i) of riot under section 147 of the Penal offence made
Code, (ii) of causing grievous hurt in the course of such riot, were respec- "Jgjjj^ff
tively sentenced to six months' rigorous imprisonment under section 147, mg Grievous
and three months' rigorous imprisonment under section 325. Held, by hurt.
Petheram, C J., and Straight and Tyrrell, J. J., that inasmuch as the
evidence upon the record showed that the three prisoners had committed
individual acts of violence with their own hands, which constituted distinct
offences of causing grievous hurt, or hurt separate from or independent
of the offence of riot, which was already completed, and fhe fact of the
riot was not an essential portion of the evidence necessary to establish their
legal responsibility under section 325 of the Penal Code, the separate
sentences passed under sections 147 and 325 were not illegal. Per Brod
iiurst, J., that the evidence showed that only one of the three prisoners had
caused grievous hurt with his own hands, and that the others could only be
properly convicted of that offence under the provisions of section 149 of the
Penal Code ; but that the separate sentences passed under sections 147 and 325
24 Consti ution y Powers of Courts. [Chap. III.
were not illegal. Also per Brodiutrsi, J : — Illustration (3) of section 235 of
the Criminal Procedure Code, 1882, does not apply merely to tliecase of persons
who, in addition to the offence of rioting, have, with their own hands, commit
ted the further offences of voluntarily causing grievous hurt, and of assault
ing a public servant when engaged in suppressing a riot ; and the convictions
referred to in the illustration relate especially to convictions obtained under
the provisions of section 149 of the Penal Code. Queen-Empress v. Ram
Sarup, I L. It., 7 All., (F. B.) 757 (1885).
Convictions of The offences of rioting, of voluntarily causing hurt, and of voluntarily
rioting & cans- ,.a„sjng grievous hurt, each of the two latter offences being committed against
hm-t -offences a different person, are all distinct offences within the meaning of section 35 of
distinct—Sepn- the Criminal Procedure Code, 1882. Under the first paragraph of section 235 of
not inesriil"0*9 tne Code, a person accused of rioting and of voluntarily causing grievous hurt
may be charged with and tried for each offence at one trial, and, under section
35, a separate sentence may be passed in respect of each. Queen-Empress
v. Dungar Singh, I. L. R., 7 All., 29 (1884).
Offence made A member of an unlawful assembly, some members of which have caused
offence* --Riot- grievous hurt, cannot lawfully lie punished for the offence of rioting as well
ing—Grievous as for the offence of causing grievous hurt. Empress v. Ram Pariah, I. L. K.,
hu,t • 6 All., 121 (1883.)
Cumulative sen- Under section 454 of the Criminal Procedure Code, 1872, the collective
tonce—Separate punishment awarded under sections 147, 148 and 324 of Penal Code, must not
' '•"-'*• exceed that which may be awarded for the graver offence. Quaere.— Whether
separate convictions under sections 147 and 324 of the Penal Code are legal.
Tlte Empress v. Jubdur Kazi.l. L. P.., G Cal., 718 (1881).
Conviction of When a person who is accused of several offences of the same kind is
— Maximum"™3 tried for each of such offences separately by a Magistrate, the aggregate punish-
ttrm of punish- inent which such Magistrate can inflict on him in respect of such offences
ment. is not limited to twice the amount of which he is by his ordinary jurisdiction
competent to inflict ; but such Magistrate can inflict on him for each offence
the punishment which he is by his ordinary jurisdiction competent to inflict.
A person accused of theft on the 1st August and of house-breaking by night
in order to steal on the 2nd August, both offences involving a stealing from the
same person, was charged and tried by a Magistrate of the first class, at
the same time, for such offences, and sentenced to rigorous imprisonment for
two years for each of such offences. Held, that the joinder of the charges
was regular under section 453 of Act X of 1«72, and the punishment was » ith-
in the limits prescribed by section 314. In the matter of Daulatai, I. L. R.,
3 AIL, (F. B.) 305 (1880).
Summary No Magistrate is entitled to split up an offence into its component parts
Ijnluwfuf' ns- ^01" "ie PurP°9e of giving himself summary jurisdiction. If a charge of an
semuly armed offence not triable summarily is laid and sworn to, the Magistrate must
with a deadly proceed with the case accordingly, unless he is at the outest in a position to
weapon. show from the deposition of the complainant that the circumstances of aggra
vation are really mere exaggeration and not to be believed. Therefore, a
Magistrate, when he has before him a person charged with having been armed
with a deadly weapon while a member of an unlawful assembly, is not at
liberty to disregard that part of the charge which charges the prisoner with
having been armed with a deadly weapon, and so to give himself jurisdiction
to try the case summarily, and then by inflicting a sentence of imprisonment
not exceeding three months, to deprive the prisoner of his right of appeal.
The Empress v. Go/am Mahmood, I. L. R., 4. Cal., 18 (1878).
V o 1 u n t a rily Where the petitioner was convicted of having voluntarily assisted in con
sisting in con- t.Caling stolen railway pins in a certain person's house and field, with a view
property,'0 to having such innocent person punished as an offender,—Held, that the
Ss. 36-39 ] Constitution & Powers of Courts. 25
Magistrate was riglit in convicting and punishing the petitioner for the two
separate offences of fabricating false evidence for use in a stage of a judicial
proceeding under section 193 of the Penal Code, an i of voluntarily assisting in
concealing stolen property under section 414, Penal Code. Emprest of India v.
Nameshar Hat, I. L. «., 1 All., 379 (1877).
A conviction under the Penal Code, and also under a special law in res- Sentence under
pect of one and the same offence, is illegal. The Queen v. Hussun AH, 5 All. "{Jjpji'f^„de
H. C, 49 (1873).
C — Ordinary and Additional Powers.
36. All District Magistrates, Subdivisional Magistrates and Sên^f

Magistrates of the first, second and third classes, have the powers Magistrates,
hereinafter, respectively, conferred upon them and specified in the
third schedule- Such powers are called their "ordinary powers."
37. In addition to his ordinary powers, any Subdivisional Additional
Magistrate or any Mngistrata of the first, second or third class £bVon "SaST.
may be invested by the Local Government or the District Magis- tnU">-
trate, as the case may be, with any powers specified in the fourth
schedule as powers with which he may be invested by the Local
Government or the District Magistrate.
38* The power conferred on the District Migistrate by* Control oj^"-
section 37 shall be exercised subject to the control of the Local trate's investing
Government. powor-
D.— Conferment, Continuance and Cancellation oj Powers.

39. (/) In conferring powers under this Code the Local*0*5 of ^con-
Govermnent may, by order, empower persons specially by name emnK power"'
or in virtue of their office, or cl ..sses of officials generally by their
official titles.
(2) Every such order shall take effect from the date on which
it is coininuniciteJ to the parson so empowered.
On the 8th August, 1884, a Magistrate of the second class began an Rioting, grie-
enquiry in a case in which several persons were accused of rioting and of vous hurt and
voluntarily causing grievous hurt. On the 6th September, the powers of 5Smt~forUraore
a Magistrate of the first class were conferred on the Magistrate by an order than one of se-
of Government which was communicated to him on the 8th September. On J*™1 oCfe,}c^5~
the 9th September, the case for the prosecution having closed, the Magistrate p"tri™c of first
framed charges against each of the accused under sections 323 and 325 of class conferred
the Penal Code, recorded the statements of the accused and the evidence for of' sccond'cSss
the defence, and on the 10th September, convicted the accused of all the during trial-
charges, passing upon each of them, in respect of each charge, sentences ^°n"*r ^ ^."j
which he could pass as a Magistrate of the first class, but could not have cbun jJagis-
passed as a Magistrate of the second class. On appeal, the Sessions Judge, trate.
On the ground that the prisoners had committed offence des '.ri bed in section
148 of the Penal Code, hold that the sentences passed by the Magistrate were
illegal, as being inconsistent with the provisions of section 71, paragraphs 2
*nd 4 : and he nerordingly reduced the sentence to imprisonment which the
26 Constitution & Powers of Courts [Chap. III.
Magistrate had paused to the maximum of imprisonment which the Magis

trate could have inflicted under section 148. //eV, by the Full Bench
(Pethekam, C. J., and Brouhc'RST, J., dissenting), that the sentences passed by
the Magistrate were legal. Per Ot.DFlELb, Mahmood, and DuthoiT, J J.,
that with reference to the terms of section 39 of the Criminal Procedure
Code, a Aagistrate or the second class who has begun a trial as such and
continued it in the same capacity up to the passing of sentence, has been
investod with the powers of it Magistrate of the first class, is competent
to pass sentence in the case as a Magistrate of the first class. Per
Oldfiei.ii and Duthoit, J. J., that the provisions of section 71 of the
Penal Code had no application to the case, inasmuch as the offences of
causing grievous hurt and hurt formed no part of the offence of rioting.
Per Pkthkram, C. J , that a case must be taken to be tried upon the day the
trial commences ; that, for all the purposes of trial, the Magistrate in this case
retained the status of a Magistrate of the second class ; and that he was
therefore not competent to pass sentence as a Magistrate of t'..e first
class, AUo per Pkthkram, C. J., that the Judge, iu this case, had no
power to alter the charge or to frame a new charge in any way.
Per Brodhurst, J., that the sentences passed by the Magistrate were, as
a whole, illegal ; that if he had convicted the accused under net-lion 148
of the Penal Code, his order would, under the circumstances, have been
legal ; that a Court of Appeal is not competent to alter the finding of a
Magistrate so as to convict an accused person of an offence which the Court
of which the order is in appeal was not competent to try ; and that a mem
ber of an unlawful assembly, some members of which have caused grievous
hurt, can be legally punished for the offence of rioting as well as for the
offence of causing grievous hurt. Queen-Empress v. Pershad, I. L. U., 7 All.
(F. B.) 414 (1885).
Amx> l-Juris- ^n Assistant Magistrate convicted an accused on the 12th August, an.l
diclkm—Time by an order of oven date, such Magistrate was invested with power to act
from which an ^ a Magistrate of first class, although the fact, that he had been so invested
p ol'n t m e nt w'th full powers, was not communicated to him until the 28rd idem. The
date*. accused appealed to the District Magistrate and was acquitted. On motion
made to the High Court to set aside the acquittal, on the ground that, after the
date of the order of the Lieutenant-Governor investing the Assistant Magis
trate with further powers, no appeal lay to the District Magistrate, - Held,
that even supposing the Lieutenant-Governor's order conferred first class
powers upon the Assistant Magistrate from the moment it was made, it must
be shown before the District Magistrate's decision could be set aside that
the order of tho Lieutenant-Governor was signed before the conviction.
Quare.— Whether an order investing a Magistrate with first class powers is
of any force, or amounts to an authority to exercise such power, until the
order has been officially communicated to the Magistrate. In re Mohamed
EshaL-.—Chundro Alanmri v. Mohamed Enhak, I. L. 1?., C Cal., 47G (1880).
cxnilinunce *0. Whenever any person holding an office in the service
of powers « 0f Government who has been invested with any powers under this
ferred? "* Code throughout any local area is transferred to an equal or
higher office of the same n ture within a like local area under the
Fame Local Government, he shall, unless the Local Government
otherwise directs, or has otherwise directed, continue to exercise
the same powers in the local area to which he is so transferred.
A Sub-Registrar having l>een invested with Magisterial powers with refer-
8ub-Be£istrar ence to offences under Act XXIV of 1859, was transferred from the place
invested with where he was officiating at the time he was s > invested to another place, and
P»»e"0.' "•!><>• there took on t:> his file and trie 1 certain cases. The District Magistrate
S. 40.] Constitution 'd Poweis of Courts 27
having reports 1 the cases for the orders of the High Court, the Court
decline I to quash hi* proceedings. Queen Empress v. Virana, L L. li.,
16 Mad., 132 (1891).
On 8th August, 1884, a Magistrate of the second class began an inquiry Power of Ma-
in a case in which several persons were accrtsed of rioting and voluntarily {^sT'coMcm-d
causing grievous hurt. On the 6th September, the powers' of a Magistrate of on Mwristmte
the first class were conferred on the Magistrate by an order' of Government J* ^0CondtI?|li!f
which was communicate 1 to him on the 8th September. On the 9th Septeni- y"ver to"»eii-
ber, the case for the prosecution having closed, the Magistrate framed charges tenco na first
against each of the accused under sections 323 and 325 of the Penal Code, ^."hôt™!,!
recorded the statements of the accused and the evidence for the defence, and charge,
on the 10th September convicted the accused of all the charges, passing upon
each of them, in respect of each chargo, sentences which fie could pass as a
Magistrate of the first class, but could not have passed as a Magistrate of the
second class. On appeal, the Sessions Judge, on the ground that the prisoners
had committed the offence described in section 148 of the Penal Code,—Held,
that the sentences passed by tho Magistrate were illegal, as being inconsistent
with the provisions of section 71, paragraphs 2 and 4 ; and he accordingly
re luce 1 tho sentences to imprisonment which the Magistrate had passed to the
maximum of imprisonment which the Magistrate could have inflicted under
section 148. Held by the Full Bench (Pbtheram, C. J , and Brodhurst, J.,
dissenting), that the sentences passed by the Magistrate were legal. Per
Oi.dkield, Maiimood ami Dutuoit, J J., that with reference to Uie terms
of section 39 of the Criminal Procedure Co le a Magistrate of the second class
who has begun a trial as such and continued it in the same capacity up to the
passing of sentence, and who, prior to passing sentence, has been invested witii
the powers of a Magistrate of the first class, is competent to pass sentence in
the case as a Magistrate of the first class. Per Oldfield and Ditthoit, J. J.,
that the provisions of section 71 of the Penal Code had no application to the
case, inasmuch as the offence of causing grievous hurt and hurt formed no
part of the offence of rioting. Per Petueram, C. J., that a case must be taken
to be tried upon the day tho trial commences ; that for all the purposes
of the trial, the Magistrate in this case retained the status of a Magistrate
of the second class ; and that he was therefore not competent to pass sentence
as Magistrate of the first class. Also ;>«?• Petueram, C. J., that the Judge in
tliis case had no power to alter the charge or to frame a new charge in any
way. Per Brodhurst, J., that the sentences passed by the Magistrate were,
as a whole, illegal ; that, if he had convicted the accused under section 148 of
the Penal Code, his order would, under the circumstances, have been legal ;
that a Court of Appeal is not competent to alter the finding of a Magistrate
so as to convict a person of an offence which the Court of which the order is in
appeal was not competent to try ; and that a member of an unlawful
assembly, some members of which have caused grievous hurt, can be legally
punishe 1 for the offence of rioting as well as for the offence of causing
grievous hurt. Queen-Empress v. Pershad, I. L. I!., 7 All., (F. B.) 414
(1885;.
Mr. .1/ was appointed by the Local Government, under section 37 of Act Xrn""t'crte t'ta
X of 1872, a Magistrate of the first class, under the designation of Joint tiynijr "a case—
Magistrate, in the district of Meerut. He was subsequently appointed to Jurisdiction to
officiate as Magistrate of the district of Meerut during the absence of Mr. F, 01 eon,Plcte trM'
until further orders. While so officiating he was appointed by a Government
Notification, dated the 10th July, 1880, to officiate as Magistrate and Collector
of Gorakhpur, " on being relieved by Mr. F." He was relieved by Mr. F in
the forenoon of the 23rd July, 1880 ; and in tho afternoon of that (lay, under
the verbal order of Mr. F, he proceeded to complete a criminal case which he
liad commence ! to try wliile officiating as Magistrate of the district of Meerut.
All the evidence in this case had been recorded, and it only remained to
General Provisions [Chap. IV.
pass judgment. Mr. M accordingly passed judgment In this rase, and

sentenced the accused persons to various terms of imprisonment. Held,
(Spankis, J., dissenting), that Mr. if retained his juris fiction in the distinct
of Meerut so long as he stood appointed bv the Government to that district and
no longer, and the effect of the order of the 10th July, 1880, was to transfer
him from the district of Meerut from the moment he was relieved by Mr F
of the office of Magistrate of that district, and from that moment he no longer
stood appointed to that district and could exercise no jurisdiction therein as a
Magistrate of the first class; and that therefore the convictions of such accused
persons had beon properly quashed on the ground that Mr. M had no jurisdic
tion. Empress of India v. Anand Sarup, I. L. K., 3 All , (F. B.) 563 (1881).
Powers of The petitioner had been convicted by Mr. Carnegy, the Assistant Corn-
Magistrates- missioner of Kamroop, in the exercise of a summary jurisdiction, under section
tetiSKr 222 of Art x,of ]?72- This officer was in the year 1872 in charge of the
fer—Furlough. Jorehaut Division in the district of Seebsangor, " with first class powers and
powers under section 222" of the Act. In 1874 he proceeded on furlough to
England, and on his return in 1875 was posted to the District of Kamroop,
and invested with the powers of a Magistrate of the first class. Held,
that section 56 of Act X of 1872 did not apply, and that Mr. Carnegy had no
Bummary jurisdiction in Kamroop. PerMAKKBY, J., on the ground that, by the
terms in which the Government had conferred that jurisdiction on Mr. Carnegy,
it had in effect "directed," within the meaning of section 56 of Act X of 1872,
that he should not exercise that jurisdiction any where but in Seebsangor.
Per Mitter, J., on the ground that the office to which Mr. Carnegy was ap-
nointed in Kamroop was not equal to or higher than that which he had held in
Seebsaugor. Qunre, per Markby, J., whether the posting of Mr. Carnegy to
Kamroop, after his return from furlough, was a transfer from Seebsaugor within
the meaning of section 56 of Act X of 1872. Criminal Motion, No. 92 oj < 87H,
against an order of the Assistant Judicial Commissioner of Kamroop, dated the
3rd December, 1875. In re Pursooram Boroxih, I. L. R., 2 Cal., 117 (187C).
becaiiceiiedy ^ The Locnl Government may withdraw all or any
of the powers conferred under this Code on any person by it or
by any officer subordinate to it.
(2) Any powers conferred by the District Magistrate may
be withdrawn by the District Magistrate.
PART III,
GENERAL PROVI IONS-
CHAPTER IV.
Of Am and Information to thk Magistrates, the Police
and Peiisons making Aukksis.
T-ahWc when 42> Every person is bound to assist a Magistrate or police-
»ratCT9t and officer reasonably demanding his aid, whether within or without
P°1,co- the presidency-towns —
(a) in the taking or preventing the escape of any other
pers m whom such Magistrate or police-officer is autho
rised to arrest :
Ss 41-42 ] General Provisions. *9
(b) in tbe prevention or suppression of a breach of the peace,
or in the prevention of any injury attempted to be com
mitted to any railway, canal, telegraph or public property.
[141 (P. C.) An assembly of five or more persons is designated ^J^JJ'"1
an " unlawful assembly," if the common object of the persons composing
that assembly is—
First.—To overawe by criminal force, or show of criminal force,
the Legislative or Executive Government of India, or the Government
of any Presidency, or any Lieutenant-Governor, or any public servant,
in the exercise of the lawful power of such public servant ; or,
Second.—To resist the execution of any law, or of any legal
process ; or,
Third.— To commit any mischief or criminal trespass, or other
offence ; or,
Fourth.—By means of criminal force, or show of criminal force,
to any person, to take or obtain possession of any property, or to
deprive any person of the enjoyment of a right of way, or of the use
of water, or other incorporeal right of which he is in possession or
enjoyment, or to enforce any right or supposed right ; or,
Fifth—By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to do, or to omit
to do what he is legally entitled to do.
Explanation.—An assembly which was not unlawful when it as
sembled, may subsequently become an unlawful assembly.]
[145 (P. C.) Whoever joins, or continues in, an unlawful asseinb- [Joining, or
ly, knowing that such unlawful assembly has been commanded in the J£"uXwfui »1in,
manner prescribed by law to disperse, shall be punished with imprison- »embiy. know-
ment of either description for a term which may extend to two years, Ueln'conimiind"
or with fine, or witli both.] " " «l to disperse ]
[146 (P. C.) Whenever force, or violence, is used by an unlaw- [Forco^ ln^êr
ful assembly, or by any member thereof, in prosecution of the Common prosecution
object of such assembly, every member of snch assembly is guilty of ?£,£°]mmon ob'
the offence of rioting.]
[151 (P. C.) Whoever knowingly joins, or continues in, any [Knowingly
assembly of five or more persons likely to cause a disturbance of the t°nuTng?n any
public peace, after such assembly has been lawfully commanded to ^^JjJ^rsSns
disperse, shall be punished with imprisonment of either description for atu-r it lias been
a term which may extend to six months, or with fine, or with both. dis^se^ to
Explanation.—If the assembly is an unlawful assembly within

the meaning of section 141, the offender will be punished under section
145.]
[154 (P. C.) Whenever any unlawful assembly or riot takes ^^^r, ofSnd
place the owner, or occupier; of the land upon which such unlawful y''^^'"^"^^
assembly is held, or such riot is committed, and any person having, or t, heM.]
30 Genera/ Provisions. [Chap. IV.
claiming, an interest in such land, shall be punished with fine not

exceeding one thousand rupees, if he, or his agent, or manager, know
ing that such offence is being or has been committed, or having reason
to believe it is likely to be committed, do not give the earliest notice
thereof in his, or their, power to the principal officer at the nearest
police-statfon, and do not, in the case of his, or their, having reason to
believe that it was about to be committed, use all lawful means in his,
or their, power to prevent it, and, in the event of its taking place,
do not use all lawful means in his, or their, power to disperse or sup
press, the riot or unlawful assembly.]
[Liability of [155 (P. C.) Whenever a riot is committed for the benefit, or
JhSe 'benefit on behalf, of any person who is the owner, or occupier, of any land
a riot is com- respecting which such riot takes place, or who claims any interest in
mitted.] gucji jan(^ or jn tjje gUDject 0f any depute which gave rise to the riot,
or who has accepted, or derived, any benefit therefrom, such person
shall be punished with fine, if he, or his agent, or manager, having
reason to believe that such riot was likely to be committed, or that
the unlawful assembly by which such riot was committed was likely
to be held, shall not respectively use all lawful means in his, or their,
power to prevent such assembly or riot from taking place, and for
suppressing and dispersing the same.]
(Liability o( [156 (P. C.) Whenever a riot is committed for the benefit, or
or6!™•Hpien'for on behalf, of any person who is the owner, or occupier, of any land
rioTiS rain-1" * re8Pect>ng which such riot takes place, or who claims any interest in
mitted.] such land, or in the subject of any dispute which gave rise to the riot,
or who has accepted, or derived, any benefit therefrom, the agent,
or manager, or such person shall be punishable with fine, if such
agent, or manager, having reason to believe that such riot was likely
to be committed, or that the unlawful assembly by which Buch riot was
committed was likely to be held, shall not use all lawful means in his
power to prevent such riot or assembly from taking place, and for
suppressing and dispersing the same.]
[Aiiray.] [159 (P. C.) When two or more persons, by fighting in a pub
lic place, disturb the public peace, they are said to " commit an
affray."]
[Omission to [187 (P. C.) Whoever, being bound by law to render or fur-
•8 1 Pu>>,ic nish assistance to any public servant in the execution of his public
bound by law duty, intentionally omits to give such assistance, shall be punished
t0 ^K]Ve a8*l*~ w simple imprisonment for a term which may extend to one month,
or with fine which may extend to two hundred rupees, or with both ;
and if such assistance be demanded of him by a public servant legally
competent to make such demand for the purposes of executing any
process lawfully issued by a Court of Justice, or of preventing the
commission of an offence, or of suppressing a riot or affray, or of
apprehending a person charged with or guilty of an offence, or of
having escaped from lawful custody, shall be punished with simple
imprisonment for a term which may extend to bi'x months, or with
fine which may extend to five hundred rupees, or with both.]
Ss. 43 —44.] General Provisions. 3'
A Magistrate directul a landholder " to find a clue " in a case of Nejtfect to aid
theft " within fifteen days and to assist the police." Held, that such order iSisobeê™"
was not authorized by sections 90 and 91 of Act X of 1872, and the convic- to order byipub-
tion of such landholder, under sections 187 and 188 of the Penal Code, for "c »ervaiit.
disobedience to such order, was not maintainable. Empress of India v.
Bakshi Ram, I. L. R , 3 AH., 201 ( 1880).
43. When a warrant is directed to a person other than a ^^^Jf^:
police-officer, any other person may aid in the execution of such licc-offlccV,
warrant, if the person to whom the warrant is directed be near w^n"*
at hand and acting in the execution of the warrant.
44. (./ ) Every person, whether within or without the pre- J^JJjJ&JjfJJ
sidency-towns, aware of the commission of, or of the intention of certain offence*
any other person to commit, any offence punishable under any
of the following sections of the Indian Penal Code (namely),
121, 121A, 122, 123, 124, 124A, 125, 126, 18>, 143, 144, 145,
147, 148, 302, 303, 304, 382,392, 393, 394, 395, 396. 897, 398,
399, 402, 435, 436, 449, 450. 456, 457, 458, 459 and 460, shall,
in the absence of reasonable excuse, the burden of proving which
shall lie upon the person so aware, forthwith give information
to the nearest Magistrate or police-officer of such commission or
intention.
< 2) For the purposes of this section the term " offence "
includes any act committed at any place out of British India
which would constitute an offence if committed in British India.
8. 121.—Waging or attempting to wage war, or abetting the waging of war,
against the Queen.
8. 121A.—Conspiring to commit certain offences against the State.
S. 122.—Collecting arms, etc, with the intention of waging war against the
Queen.
S. 123.—Concealing with intent to facilitate a design to wage war.
8. 124.—Assaulting Governor-General, etc., with intent to compel or restrain
the exercise of any lawful power.
S. 124A. -Sedition.
S. 125.—Waging war against any Asiatic power in alliance or at peace with
the Queen, or abetting the waging of such war.
S. 126.—Committing depredation on the territories of any power in alliance
or at peace with the Queen.
S. 130.—Aiding escape of, rescuing or harbouring, such prisoner, or offering
any resistance to the recapture of such prisoner.
8. 143.—Being member of an unlawful assembly.
8. 144.—Joining an unlawful assembly armed with any deadly weapon.
8. 145.—Joining or continuing in an unlawful assembly, knowing tlut it has
been commanded to diHperse.
S. 147.— Rioting.
8. J48.—Rioting, armed with deadly weapon.
S. 302.—Murder.
S. 303. —Murder by a person under sentence of transportation for life.
3* General Provisions. [Chap. IV.
S. 304.—Culpable homicide not amounting to murder, if act by which the
death is caused is done with intention of causing death, etc.
S. 382 —Theft, preparation having been made for causing death, or hurt, or
restraint, or fear of death, or of hurt , or of restraint, in order to
the committing of such theft, or to retiring after committing it, or
to retaining property taken by it.
S. 392.-Kobbery.
S 393. —Attempt to commit robbery.
S. 394.— Person voluntarily causing hurt in committing or attempting to com
mit robbery, or any other person jointly concerned in such robbery.
S. 395.—Dacoity.
S. 396.—Murder in dacoity.
S 397. — Robbery or dacoity, with attempt to cause death or grievous hurt.
S 398.— Attempt to commit robbery or dacoity when armed with deadly
weapon.
S. 399.—Making preparation to commit dacoity.
S. 402.— Being one of five or more persons assembled for the purpose of
committing dacoity.
S. 435.— Mischief by fire or explosive substance with intent to cause
damage to amount of 100 rupees or upwards, or, in case of agri
cultural produce, 10 rupees or upwards.
S. 436.—Mischief by fire or explosive substance with intent to destroy a
house, &c.
S. 449.—House-trespnss in order to the commission of an offence punish
able with death.
S. 450.— House-trespass in order to the commission of an offence punishable
with transportation for life.
S. 456.— Lurking house-trespass or house-breaking by night.
S. 457 —Lurking house-trespass or house-breaking by night in order to
the commission of an offence punishable with imprisonment.
S. 458.—Lurking house-trespaRS or house-breaking by night after preparation
made for causing hurt, &c.
S. 459.—Grievous hurt caused whilst committing lurking house-trespass or
house-breaking.
S. 460. — Death or grievous hurt caused by one of several persons jointly con
cerned in house-breaking by night. &c.
[Owner, or [154 (P. C.) Whenever an unlawful assembly or riot takes place
cnCwii'ich iVun- the owner, or occupier, of the land upon which such unlawful assembly
lawful issembl; jg held, or such riot is committed, and any person having, or claiming,
u e an interest in such land, shall be punishable with fine not exceeding
one thousand rupees, if he, or his agent, or manager, knowing that such
offence is being or has been committed, or having reason to believe it is
likely to be committed, do not give the earliest notice thereof in his,
or their, power to the principal officer at the nearest police-station, and
do not, in the case of his, or their, having reason to believe that it was
about to be committed, use all lawful means in his, or their, power to
prevent it, and, in the event of its taking place, do not use all lawful
means in his, or their, power to disperse, or suppress, the riot or unlawful
assembly.]
S. 45-1 General Provisions. 33
[176 (P. C.) Whoever, being legally bound to give any notice, or [Omission to
to furnish information, on any subject to any public servant, as such, in- Srmation to a
tentionally omits to give such notice, or to furnish such information in Ey*1^4on'i2
the manner and at the time required by law, shall be punished with aim- gaily bound to
pie imprisonment for a term which may extend to one month, or with fine fntormatiou.] °r
which may extend to five hundred rupees, or with both; or, if the notice
or information required to be given respects the commission of an offence,
or is required for the purpose of preventing the commission of an offence,
or in order to the apprehension of an offender, with simple imprisonment
for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.]
[202 (P. C.) Whoever, knowing or having reason to believe that retentional
an offence has been committed, intentionally omits to give any informa- f^rm^tionôf
tion respecting that offence which he is legally bound to give, shall be an offence^
punished with imprisonment of either description for a term which may fnfoJJn.]
extend to six months, or with fine, or with both.]
45, (7) Every village-headman, village accountant, village- viiiage-Uead-
watchman, village-police-officer, owner or occupier of land, and {ants, lamMioi-
the agent of any such owner or occupier, and every officer employ- boundto report
ed in the collection of revenue or rent of land on the j 'art of certain matters.
Government or the Court of Wards, shall forthwith communicate
to the nearest Magistrate or to the officer in charge of the nearest
p dice station, whichever isthenetrer, any information which he
may obtain respecting —
(a) the permanent or temporary residence of any notorious
receiver or vendor of stolen property in any village of
which he is headman, accountant, watchman or police-
officer, or in which he owns or occupies land, or is agent,
or collects revenue o." rent :
(i) the resort to any place within, or the passage through,
such village of any person whom he knows, or reasonably
suspects, to be a thug, robber, escaped convict or pro
claimed offender ;
(c) the commission of or intention to commit, in or near such
village any non-bailable offence or any offence punish
able under sections 143, 144, 145, 147 or 148 of the Indian
Penal Code ;
(</) the occurrence in or near such villag3 of any sudden or
unnatural death or of any death under suspicious cir
cumstances ;
(e) the commission of, or intention to commit, at any place out
of British India near such village any act which, if com
mitted in British India, would be an offence punishable
under any of the following sections of the Indian Penul
Code, namelv. 302, 304, 382,39Si 393 394, 3^5, 396, 397,
398, 399, 102, 435, 136, 419, 450, 457, 458. 459. and
460 ;
3
34 General Provisions. [Chap. IV.
(/) any matter likely to affect the maintenance of order or

the prevention of crime, or the safety of person or pro
perty respecting which the District Magistrate, by general
or social order made w'th the previous sanction of the
Local Government, has directed him to communicate in
formation.
(2) In this section—
(t) "village" includes village-lands ; smd
(it) the expression " proclaimed offender " includes any person
proclaimed as an oHender by any Court or authority estab
lished or cunt nued by the Governor-General in Council
in any part of India in respect of any act which, if com •
mitted in British India, would be punishable under any
of the following sections of the Indian Penal Code, name
ly, 30 i, 30-4, 38 1, 392, 393, 394, 395, 396, 397, 398, 399,
402, 435, 436, 449, 450, 457, 458, 459 and 460.
ofPJmw™h^d- (^) Subject to rules in this behalf to be mide by the Local
meu.by District Government, the District Magistrate may from time to time
ccrSiiu-ases to" appoint one or more persons to be village -headmen for the
Erction? 01 thi8 purposes of this section in any village for which there is no such
headman appointed under any other law.
See the preceding section for the sections of the Indian Penal
Code referred to above.
ffi notice » C1.76 (P- C0 Whoever, being legally bound to give any notice, or
information to s to furnish, information, on any subject to any public servant, as such,
S" aC person intentionally omits to give such notice, or to furnish such informa-
Llve1'noUcoldor° t'on 'n ê manner anQ" at the time required by law, shall be punish-
uiformation.] ed with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred rupees, or with
both ; or, if the notice or information required to be given respects the
commission of an offence, or is required for the purpose of prevent
ing the commission of an offence, or in order to the apprehension of
an offender, with simple imprisonment for a term which may extend to
six months, or with fine which may extend to one thousand rupees, or
with both.]
f'*oni?nfonna- ^ Whoever, being legally bound to furnish infor-
tion.] " mation on any subject to any public servant, as such, furnishes as true
information on the subject which he knows or lias reason to believe to
be false, shall be punished with simple imprisonment for a term which
may extend to six months, or with fine which may extend to one
thousand rupees, or with both ; or, if the information which he is le
gally bound to give respects the commission of an offence, or is required
for the purpose of preventing the commission of nu offence, or in order
S. 45-] General Provisions. 35
to the apprehension of an offender, with imprisonment of either des
cription for a term which may extend to two years, or with fine, or
with both.
Kxplwation. - In section 176 and in this section the word
"offence" includes any act committed at any place out of British India,
which, if committed in British India, would be punishable under any
of the following sections, namely, 302, 304, 382, 392, 893, 394, 395,
396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459, and 460 ;
and the word " offender" includes any person who is alleged to have
been guilty of any such act.
Illustrations.
(a) A, a landholder, knowing of the commission of a murder
within the limits of his estate, wilfully misinforms the Magistrate of
the district that the death has occurred by accident in consequence of
the bite of a snake. A is guilty of the offence defined in this section.
(ft) A, a village watchman, knowing that a considerable body of
strangers has passed through his village in order to commit a dacoity in
the house of Z, a wealthy merchant residing in a neighbouring place,
and being bound, under clause 5, section 7, Regulation III of 1821
of the Bengal Code, to give early and punctual information of the above
fact to the officer of the nearest police-station, wilfully misinforms the
police-officer that a body of suspicious characters passed through the
village with a view to commit dacoity in a certain distant place in a
different direction. Here A is guilty of the offence defined in this sec
tion.]
Where one of several persons bound to give information to the police Omission to
under section 45 or the Criminal Procedure Code, 1882, gave such informa- j"ve information
tion as to the commission of a murder, in consequence of which a police- offence".6 °
officer arrive! in the village shortly after the occurrence,—Held, that the fact
that other persons who might possibly also be bound to give that informa
tion had omitted to do 8) was no ground for their prosecution and conviction
of an offence under section 176 of the Penal Cole. Queen-Empress v Gopal
Sing, I. L. R., 20 Cal., 316 (1892).
Under section 45 of the Code of Criminal Procedure, 1882, every owner or Ulltv t0 TOport
occupier of land is bound to rep >rt the occurrence therein of any sudden midden death-
death. The head of a Nagar family was convicted and lined under section °;|Ii[j^,°^h,edUao
176 of the Penal Code for not reporting a sudden death in the family house, from owner ol
Held, following former decisions of the Court, that the conviction was illegal land,
because section 45 of the Code does not apply to the owner of a house.
Queen- Empress v. Achutha, I. L. R., 12 Mad., 92 (1888;.
Before an accuse I can be convicte 1 of an o fence under section 2 )1 of the Cuwin* dis-
Penal Code, it must be proved that an offence, the evidence of which he is cv'dmico™ »°n
charged with causing to disappear, has actully been committed, and also that offence—Omit-
the accused knew or had information sufficient to lead him to believe that the s{"fdon,refunna*
offence had hsen committed. Held, (per Prixsep and Macfiierson J. J.).—It tumlor'suspici-
is not necessary in order to support a conviction under section 176 of the nus death.
Penal Cole against a person falling within the provisions of section 45 of the
CriminalProcodure Code, 1882, for not giving information of an occurrence
falling under clause (d) of that section, to show that the death actually oc
curred on his land, when the circumstances disclosed show that a body has been
36 General Provisions. [Chap. IV.
found under circumstances denoting that the death was sudden, unnatural,
or suspicious ; the finding of the body being a fact from which a Court might
reasonably infer, in the absence of evidence to the contrary, that the death took
place there. Held, (per Mittkr, J.)-—It is necessary to secure a conviction in
the latter case to prove th.it the death took place or occurred in the village or
on the land of the accuse.!, and the finding of a body there does not of itself
afford that proof, ilatuki Misser v. Queen-Empress, I. L. R., 11 Cal., 619
(1885).
(riva'infornmUoii K wa* convicts 1 under section 141! of the Penal Code of having inten-
to police-Pro- tionally omitted to inform the police of the presence of V, a proclaimed offen-
cmlcr,,0n °f °n ('cr' at a ccrtam village. It was presumed by the Court that V was a pro-
"' claimed offender because it was proved that the property of V had been attach
ed under the provisions of section 88 of the Code of Criminal Procedure, 1882.
Held, that the prosecutor was bound to prove the facts of proclamation. A
person legally bound to give information to the police of the presence of a
proclaimed offender at a certain place ought not to be prosecuted for omitting
to give such information where the police are already aware of the fact. In
re l'andtja Nuyak, I. L. B., 7 Mad., 436 (1884).
Caunintr dis- Held, that it is necessary, in order to justify a conviction under section
"vWtolwTof nn 201 °f tne Penal Code, that an offence for which some person has been con-
offence, victed or is criminally responsible should have been committed. Empress of
India v. Abdul Kadir, I. L. R., 3 All., (F. B.) 279 (1880).
to''0™?" nt Prr ÂRKBY' —A khazanchi is not an " agent " within the meaning of
of owner ot lami. section 90 of the Criminal Procedure Code, 1872. A dewan may be an "agent"
if his master is absent, but the provisions of section 90 do not apply to a dewan
who is acting only under the orders of his resident master Per Prinskp, J.
(Jncere.— Whether, according to section 90, an agent is only responsible for
giving information of the occurrence of any sudden or unnatural death? The
Empress v. Achiraj Lad, I. L. R., 4 Cal., 603 (1878).
Omission to The provisions of section 90 of the Criminal Procedure Code, 1872, should
to^'ponce'3 "of not be put j„ force against one who has omitted to give information to the
offence. police of an offence having been committed in cases where the police have
actually obtaineil such information from other sources In re Sushi Bhusan
ChtekerbuUy, I. L. R., 4 Cal., 623 (1878).
Village hc When a village accountant and a village Munsif's peon had been convicted
MemUMuraif'» un<ler. KW'on 217 of the Penal Code of having disobeyed the direction of law
peoii-i'ireetion contained in section 90 of the Criminal Procedure Code,—Held, that they were
of law. wrongfully convicted as not bearing the character which raises the obligation
u'ider the latter section. The direction of law menti med in section 217 of
the Penal Code, means a positive direction of law such as those contained in
sections 89 and 90 of tho Criminal Procedure Code, and cannot be made to
extend to the more general obligation on every subject not to stifle a criminal
charge. In re Raminihi Nagar, I. L. R., 1 Mad., 266 (1877).
Occupation of The duty imposed by the Code of Criminal Procedure, 1872, section 90, up-
of"d owner '"'or on v'"af>e headman, &c, of giving information as to the occurrence of any sud-
agent. den or unnatural death, is intended to apply only when such occurrence takes
place at or near the village of which he is headman, or in which he owns or
occupies land, &c. ResiJence in a dwelling-house belonging to another is not
occupation of land within the meaning of the section. The liability of the re
sident agent of an owner, under the section, arises when the owner is not
resident, and has no personal knowledge of the fact required to be reported ;
where the owner has such knowledge, the liability attaches to him. In re
Mudhoosoodun Chuckerbulty, 23 W. R., 60 (1875).
Omission to 1° a case w'>ich the accused are charged with having omitted to give
give inform*- information which they were legally bound to give under section 90 of the Code
tiou to police. 0f Criminal Procedure, 1872. it should appear what the offence is as to tho
Ss. 46-47.] General Provisions. 37
commission of which the accused wilfully omitted to give information; that
the specified offence was, in fact, committed by some one, and that the accused
knew of its having been committed. The Queen v. Ahmed AU, 22 \\ . K., 42
(1874).
CHAPTER V.
Of AitnasT, Escape and Retaking.
A. — Arrest generally.
46> {1) In making an arrest the police-officer or other per- Arrest how
son making the same shall actually touch or confine the body of madc'
the person to be arretted, unless there be a submission to the cus-
to ly by word or action.
(2) If such person forcibly resists the endeavour to arrest him itc»i>tin« en-
or attempts to evade the arrest, such police-officer or other person ?™™"r 10
may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death
of a person who is not accused of an offence punishable with death
or with transportation for life.
47. If any person acting under a warrant of arrest, or any J^J^Jy* '"'"j*
police-officer having authority to arrest, has reason to believe that »n mhi*iu to im
the person to be arrested has entered into, or is within, any place
the person residing in, or being in charge of such place shall, 011
demand of such person acting as aforesaid or such police-officer,
allow him free ingress thereto, and afford all reasonable facilities
for a search therein.
[186 (P. C.) Whoever voluntarily obstructs any public servant ^ft'"11'^"*,,,!
in the discharge of his public functions shall be punished with imprison- in di><-luin«> oi
ment of either description for a term which may extend to three months, {jo„'i."l>llu c"
or with tine which may extend to five hundred rupees, or with both.]
[225 (P. C.) Whoever intentionally offers any resistance, or [ He*i*t»nre or
illegal obstruction, to the lawful apprehension of any other person for "he'Vowfu" np-
an offence, or rescues, or attempts to rescue, any other person from any prehension "i
custody in which that person is lawfully detained for an offence, shall * "'rpe>-»onJ
be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both ;
or, if the person to be apprehended, or the person rescued, or at
tempted to be rescued, is charged with, or liable to be apprehended for,
an offence punishable with transportation for life, or imprisonment for a
term which may extend to ten years, shall be punished with imprison
ment of either description for a term which may extend to three years,
and shall also be liable to fine ;
or, if the person to be apprehended, or rescued, or attempted to be
rescued, is liable, under the sentence of a Court of Justice, or by virtue
of a commutation of such a sentence, to transportation for life, or to trans
portation, penal servitude, or imprisonment for a term of ten years or
3* General Provisions. [Chap. V.
upwards, shall be punished with imprisonment for either description for

a term which may extend to seven years, and shall also be liable to fine ;
or, if the person to be apprehended, or rescued, or attempted to be
rescued, is under the sentence of death, shall be punished with transport
ation for life or imprisonment of either description for a term not ex
ceeding ten years, and shall also be liable to fine.]
Procedure 43. If ingress to such place cannot be obtained under see-
where initress .. ', .. . P , » , . ' „ . ,
mt obtainable, tion 47, it shall be lawful in any case lor a person acting under a
warrant and in any case in which a warrant may issue, but cannot
be obtained without affording the person to be arrested an oppor
tunity of escape, for a police-officer to enter sucb piece and search
therein, and, in order to effect an entrance into such place, to break
open any outer or inner door or window of any house or place,
whether that of the person to bo arrested or of any other person,
if after notification of his authority and purpose, and demand of
admittance duly made, he cannot otherwise obtain admittance :
Breaking open Provided that, if any such place is an apartment in the actual
""""" occupancy of a woman (not being the person to be arrested j who,
recording to custom, does not appear in public, such person or
police-officer shall, before entering such apartment, give notice to
such woman that she is at liberty to withdraw, and shall afford her
every reasonable facility for withdrawing, and may then break
open ths apartment and enter it.
Power to break "^"^ police-officer or other person authorised to make
open doors and an arrest may break open any outer or inner door or window of
ppae^r'ifbem- any house or placs in order to liberate himself or any other person
tmn. who, having lawfully entered for the purpose of making an arrest,
is detained therein.
No unnecessary ■ 50.
. . .i The. person
1 arrested shall . i .not be subjected
* to more
restraint. restraint than is necessary to prevent his escape.
[Penalty for [29 (Act V of 1861). Every police-officer who shall be guilty of
negject of du- any violation of duty or wilful breach or neglect of any rule or regula
tion or lawful order made by competent authority, or who shall with
draw from the duties of his office without permission, or without having
given previous notice for the period of two months, or who, being absent
on leave, shall fail, without reasonable cause, to report himself for duty
on the expiration of such leave, or who shall engage, without authority
in any employment other than his police duty, or who shall be gailty of
cowardice, or who shall offer any unwarrantable personal violence to any
person in his custody, shall be liable, on conviction before a Magistrate,
to a penalty not exceeding three months' pay, or to imprisonment, with
or without hard labour, for a period not exceeding three months, or to
both.]
retention of Where a Sub-Inspector of police is charged with having detained prisoners
accused by po- for more than 24 hours, it is not necessary.for the Crown to prove that he de-
Juto^??od.a" tailleJ them with a £l,iltJ' knowledge, us section 124 of the Code of Criminal
Procedure, 1872, imperatively lays clown that accused are on no account to be
detained beyond that time except under special order of the Magistrate, which
was not obtained in this case. The Queen v. Batooram Dots, 19 W. R., 36
(1873).
51. Whenever a person is arrested by a police-officer under f^sVed0' per-
a warrant which does not provide for the taking of bail, or under
a warrant which provides for the taking of hail but the parson
arrested cannot furnish bail, and
whenever a person is arrested without warrant, or by a
private person under a warrant, and cannot legally be admitted
to bail, or is unable to furnish bail,
the officer making the arrest or. when the arrest is made
by a private person, the police-officer to whom he makes over the
person arrested may search such person, and place in safe
custody all articles, other than necessary wearing-apparel, found
upon him
52. Whenever it is necessary to cause a woman to be Mode of search-
searched, the search shall be made by another woman, with strict in* women-
regard to decency.
53« The officer or other person making any arrest under Power to seiie
this Code may take from the person arrested any offensive wea- offenuve w"*
pons which he has about his person, and shall deliver all weapons
so taken to the Court or officer before which or whom the officer
or person making the arrest is required by this Code to produce
the person arrested.
B.—Arrest without Warrant.
54. (/) Any police-officer may, without an order from a when police
Magistrate and without a warrant, arrest— wuîwTwar-
raut.
firstly—any person who has been concerned in any cognizable
offence or against whom a reasonable complaint has
been made, or credible information has been received,
or a reasonable suspicion exists, of his having been so
concerned ;
secondly- any person having in his possession without law
ful excuse, the burden of proving which excuse shall
lie n such person, any implement of house-breaking ;
thirdly— any person who has been proclaimed as an offender
either under this Code or by order of the Local
Government ;
fourthly— any person in whose possession anything is found
which may reasonably be suspected to_ be stolen
40 General Provisions. [Chap V.
property, or who may reasonably be suspected of having

committed an offence with reference to such thing ;
fifthly— any person who obstructs a police-officer while in

the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody ;
sixthly —any person reasonably suspected of being a deserter

from Her Majesty's Army or Navy, or of belonging
to Her Majesty s Indian Marine Service and being
illegally absent from that service ;
seventhly —any person who has been concerned in, or against
whom a reasonable complaint has been made or
credible information has been received or a reasonable
suspicion exists of his having been concerned in,
any act committed at any place out of British India,
which, if committed in British India, would have
been punishable as an offence, and for which he is,
under any law relating to extradition or under the
Fugitive Offenders' Act, * 1881, or otherwise, liable to
be apprehended or detained in custody in British
India; and
eighthly — any released convict committing a breach of any
rule made under section 565, sub-section (8).
(<?) This section applies also to the police in the towns of

Calcutta and Bombay.
^tered pereon ^ (Criminal Tribes' Act). Any person registered under the
found beyond provisions of this Act, who is found in any part of British India, be-
miu?f " Jond the limits so prescribed for his residence, without such pass as
may be required by the said rules, or in a place or at a time not per
mitted by the conditions of his pass,
or who escapes from a reformatory settlement,
may be arrested without warrant by any police-officer or village
watchman, and taken before a Magistrate, who, on proof of the facts,
shall order him to be removed to the district in which he ought to
have resided, or to the reformatory settlement from which he has es
caped (as the case may be), there to be dealt with according to the
rules under this Act for the time being in force.
The rules for the time being in force for the transmission of
prisoners shall apply to all persons removed under this section : Pro
vided that an order from the Local Government or fiom the Inspector-
General of Prisons shall not be necessary for the removal of such
persons.]
° 44 ami 45 Vic, C. C9.
i
S. 54-1 General Provisions. 4«
f 131 (Indian Railway Act IX of 1890). (1) If a person commits [Arrest for off-
offence any mentioned in sections • 100, 101, 119, 120, 121, 126, 127, certain sections]
128, or 129, or in section 130, sub-section (/), he may be arrested with
out warrant or other written authority by any railway servant or police-
officer, or by any other person whom such servant or officer may call to
his aid.
(2) A person so arrested shall, with the least possible delay, be
taken before a Magistrate having authority to try him or to commit him
for trial.]
[132 (Indian Railway Act). (1) If a person commits any offence J^JJ^j^j!
under this Act other than an offence mentioned in the last foregoing abscond or un-
section, or fails or refuses to pay any excess charge or other sum de- known-l
manded under section 113, f and there is reason to believe that he
will abscond, or his name or address are unknown, and he refuses on
demand to give his name and address, or there is reason to believe
that the name or address given by him is incorrect, any railway servant
or police-officer, or any other person whom such railway servant or
police-officer may call to his aid, may, without warrant or other written
authority, arrest him.
(2 . The person arrested shall be released on his giving bail, or,
if his true name and address are ascertained, on his executing a bond
without sureties, for his appearance before a Magistrate when required.
(3) If the person cannot give bail and his true name and address
are not ascertained, he shall, with the least possible delay, be taken
before the nearest Magistrate having jurisdiction.
(4) The provision of chapters XXXIX and XLII of the Code
of Criminal Procedure, 1882, shall, so far as may be, apply to bail
given and bonds executed under this section.]
[133 (Indian Railway Act). No Magistrate other than a Presi- [Magistrate
dency Magistrate, or than a Magistrate whose powers are not less than |1i*î„Mj"rri^tcj
those of a Magistrate of the second class, shall try any offence under l0"
this Act.]
[134 (Indian Railway Act). (1) Any person committing any [Place 0, trM^
offence against this Act or any rule thereunder shall be triable for such
offence in any place in which he may be, or which the Local Govern
ment may notify in this behalf, as well as in any other place in which
he might be tried under any law for the time being in force.
S. 100.—Drunkenness. ing to hurt persons travelling

8. 101.—Endangering the safety of per by railway.
sons. 8. 128 — Endangering safc*y of
8. 119.—Entering carriage or other travelling by_ railway by wilful
plnce reserved for females. actor omission.
S. 120.— Drunkenness or nuisance on a 8. 129. -Endangering safety of persons
railway. travelling by railway by rash
or negligent act or omission.
8. 121.—Obstructing' railway servant in 8. ISO, sub-section (i). Special provi
his duty. sion with respect to the com
8. 126. -Maliciously wrecking or at mission by children of acts
tempting to wreck a train. endangering safety of persons
travelling by railway.
8. H-.—Maliciously hurting or attempt
t S. IIS.—Travelling without na»« or ticket, or with inanHelen! pass or ticket, or
lt«*yoml authorized distance.
42 General Provisions. [Chap. V.
(2 1 Every notification under sub-section (1) shall be published in

the local official Gazette, and a copy thereof shall be exhibited for the
information of the public in some conspicuous place at each of such
railway station as the Local Government may direct.
[Prohibition [13 (Act XI of 1878). No person shall go armed except under a
of Koine armed license and to the extent and in the manner permitted thereby,
without license ] pergon 80 going armed without a license or in contravention of
its provisions, may be disarmed by any Magistrate, police-officer, or other
person empowered by the Local Government in this behalf by name or by
virtue of his office.]
iorU'rartemntof (^ct ^ °^ *861). ^ny person who, on any road or in any
fence on roads, open place or street or thoroughfare within the limits of any town to which
*C-J this section shall be especially extended by the Local Government, com
mits any of the following offences to the obstruction, inconvenience, an
noyance, risk, danger or damage of the residents or passengers, shall, on
conviction before a Magistrate, be liable to a fine not exceeding fifty
rupees, or to imprisonment not exceeding eight days ; and it shall be
lice officer
iceo cer.j f° lawful for
person whoany police-officer
within to take into
his view commits any custody, without namely:—
of such offences a warrant, any
[Slaughtering First.—Any person who slaughters any cattle or cleans any carcass;
riding, 4c"n°u* an7 person who rides or drives any cattle recklessly or furiously, or trains
or breaks any horse or other cattle :
[Cruelty to Second.—Any person who wantonly or cruelly beats, abuses or
animals :] tortures any animal :
[Obst'uctinc Third.—Any person who keeps any cattle or conveyance of any

passengers :] Ending longer than is required for loading or unloading or for
taking up or setting down passengers, or who leaves any conveyance
in such a manner as to cause inconvenience or danger to the public:
Kooofs'for'saie :] Fourth.—Any person who exposes any goods for sale :
[Thr o win* Fifth.—Any person who throws or lays down any dirt, filth, rubbish,
dirt into street:] or any 8tones or building materials; or who constructs any cowshed,
stable or the like, or who causes any offensive matter to run from any
house, factory, dung-heap or the like :
[Being drunk Sixth.—Any person who is found drunk or riotous, or who is in-
or riotous 0 capable of taking care of himself :
[indecent ex- Seventh.—Any person who wilfully and indecently exposes his per-
posure ot per gon or anv offensive deformity or disease, or commits nuisance by easing
himself, or by bathing or washing in any tank or reservoir not being a
place set apart for that purpose :
[Neglect to pro- Eighth. — Any person who neglects to fence in or duly to protect
t«ct
places.]dangerous any well,
,f tank
. . or other
* f dangerous
, ? or structure.
place ,
inC carding out C85 (Acfc XV of 18<3)- Every officer of Police in »nv municipa-
orders regard- lity to which this Act shall have been extended, may take into custody
nig nuisances.] wjtnou(. a warrant any person who within his view commits any of the
S. 54.1 General Provisions. 43
offences mentioned in section 34 of Act V of 1861 {for the regulation
o/ Police), and shall carry out the orders issued by the committee for
the prohibition and prevention of public nuisances, or nuisances declared
to ba such by any rule made under this Act.]
[Part III. cl. (rf) (Act V of 1869). Whenever any person ^prt^.] °'
subject to the said Articles, deserts, the commanding officer of the
regiment, corps, or detachment to which he belongs, shall give written
information of the desertion to such civil, political, or police authori
ties as, in his opinion, may be able to afford assistance towards the
capture of the deserter ; and such authorities shall thereupon take steps
for the apprehension of the said deserter, in like manner as if he were a
person for whose capture a warrant had been issued by a Magistrate, and
shall deliver the deserter when apprehended to military custody.
Such authorities shall also, by such means as appear to them best
adapted for the purpose, prevent persons reasonably suspected to be sub
ject to the said Articles from travelling through the districts subject to
thei.- jurisdiction, unless on duty, or furnished with a certificate of leave
or discharge.
Any police-officer may arrest, without warrant, any person so
suspected, and shall bring him without delay before the nearest
Magistrate, or the nearest military commanding officer when no Magis
trate is readily accessible, to be dealt with according to law.]
[Rule III. Whenever any person, apparently a vagrant, refuses [Rules under
or fails to comply with any requisition made by a police-officer under renÂct xSi
section 4 of the Act. of iw.]
Whenever any person of European extraction commits an offence
under section 23 of the Act in view of a police-officer,
and whenever any police-officer has reason to think that such
offence has been, or is being committed, the person so refusing, failing
or offending, may be forthwith arrested, without warrant by the police-
officer, for the purpose of being produced in the usual manner before the
officer empowered to deal with the case. Gazette of India, October 22nd,
1870, Part I., p. 723.]
Section 54 of the Criminal Procedure Code, 1882, does not empower a offence com-
police-officer to arrest, without a warrant, a British subject in British India mitted by a Bri-
on a charge of criminal breach of trust or other cognizable offence committed Ji8h. ""''je0' 'n
outside British India. Mukund was a native Indian subject of the Queen- —PoTersoir the
Empress, residing at Belgaum. A complaint was filed against him in the police to arrest
Sangli State, charging him with committing breach of trust within the terri- rant?"' * W&r"
tories of that State. Thereupon he obtained an order from the District Ma
gistrate of Belgaum, dated 15th November, 1891, which exempted him from
arrest for the offence of criminal breach of trust without a warrant issued hy
himself or by the political Agent of the Southern Maratha country. This
order was communicated to Mukund through the accused, who was chief
constable at Belgaum. On the 27th November, 1891, a police-officer from
the Sangli State came to Belgaum with a warrant issued by the Sangli Court
for the arrest of Mukund on a charge of criminal breach of trust. The chief
constable thereupon directed Mukund's arreist. Mukund brought to the

notice of the chief consthble the District Magistrate's order of the 15th No
vember. 1 801 , but he was detained in custody till the matter was reported
to the first-class Magistrate, who ordered his discharge. In the meantime
the complaint filed against Mukund in the Sangli State was dismissed with
out requiring his extradition. Mukund thereupon prosecuted the chief constable
on a charge of wrongful arrest and wrongful confinement. Held, that the
chief constable had no power to arrest the complainant without a warrant,
and that he was guilty of the offence of wrongful confinement under section
342 of the Indian Penal Code. In re Mukund Babu Vethe, I. L. R., 19 Bom.,
72 (1894).
Riitht ot pri- The complainant lodged a complaint before the Acting Chief Presidency
agahiRt t*'" Magistrate, charging the accused, a police constable, with wrongful restraint
a public servant and wrengful confinement. The defence was that the complainant had as
under cSou/of 8!lU'te^ ™e accusef'i anr* "ttd been on tnut account arrested and kept in
his office— Rea- confinement until released by the inspector of police. The Magistrate found
gonable »uspi- that there was no justification for the suspicion which the accused professed
tion to a police- t0 entertain ; that there was no reasonable grounds for questioning the corn-
officer while net- plainant about the cloth in his possession ; and that the scuffle was caused
of dutyeleCUtl°n 80'e'y °y the action of the accused in treating the complainant, without any
valid reason, as a suspected thief. The Magistrate convicted the accused of
wrongful confinement under section 342 of the Penal Code and sentenced him
to four months' rigorous imprisonment. Held, by the High Court, that the
conviction was wrong. The accused having, under the circumstances of the
case, an honest suspicion that the cloth in the possession of the complainant
was stolen property, was justified in putting questions to the complainant, the
answers to w hich might clear away his suspicions, and having received an
swers which were not, in his opinion, satisfactory, he acted under a bona fidt
Itelief that he was legally justified in detaining what he suspected to be stolen
property. The putting of questions to the complainant, not for the purpose of
causing annoyance or from idle curiosity, but in order to clear of his suspi
cions, was an indication of good faith. He was, therefore, protected by section
79 of the Code. Even though the act of the accused in detaining the cloth might
not have been strictly justifiable by law,- that is, even though there might not
have been a complete bases of fact to justify a reasonable suspicion that the
cloth was stolen property,—still the complainant had no right of private de
fence under section 99 of the Code, as the accused was a public servant act
ing in good faith under colour of his office, and his act was not one which
caused the apprehension of death or of grievous hurt. The complainant was
not justified in refusing to allow the accused to inspect the cloth, in snatching
it from his hands, and in scuffling with him. He was, therefore, legally
arrested, under section 54, clause 5 of the Criminal Procedure Code, 1882,
for obstructing a police-officer while acting in the execution of his duty.
Bhawoo Jivaji v. Mulji Dayal, I. L. R., 12 Bom., 377 (1888).
Power ot the Section 54 of the Criminal Procedure Code, 1882, authorises the arrest by
police to arrcut the police, not only of persons against whom a reasonable complaint has been
rant * * ma(ê or a reasonable suspicion exists of their having been concerned in a
''cognizable offence," but also of persons against whom "credible information"
to that effect has been received. SemMe.—Where the arrest is legal there can
be no guilty knowledge, superadded to an illegal act, such as it is necessary to
establish against the accused to justify a conviction under section 220 of the
Penal Code. It is only where there has been an excess, by a police-officer, of
his legal powers of arrest that it becomes necessary to consider whether he
has acted corruptly or maliciously, and with the knowledge that he was acting
contrary to law. Queen-Empreu v. Amartang Jetha, Hosain (,'ulam and
Bhimrao Kethavrao, I. L. R., 10 Bom.. 506 (1885).
S. 55] General Provisions. 45
A ch tukidar or village watchman is not legally bound as a public servant Village chauki-
to apprehend a person accused of committing murder outside the village of ^"^""utside
which he is chaukidar, such person not being a proclaimed offender, and not the limit of his
having been found by him in the act of committing such murder, and couse- circle,
fluently such chaukidar, if he refuses to apprehend Buch person on such charge
at the instance of a private person, is not punishable under section 221 of the
Penal Code Emprett of India v. Kallu, I. L. R., 3 All., 60 (1880).
In the ease of a police-officer charged under the Penal Code, section 342, Wrongful res-
where there was no notice, no intention of doing an act of the nature spoken traint by the
of in section 339 or 340, and no voluntary obstruction or restraint, though 90 lcc'
there was probably excessive and mistaken exercise of powers not civilly exer
cisable in a pjlice-officer, the facts were held not to amount to the criminal
offence of wrongful restraint. In re Jfudrool Hossein, 24 W. R., 51 (1875).
The general exceptions provideJ by section 79 of the Penal Code and the Police-officer -
power conferred by clause 5, section 100 of the Code of Criminal Procedure, i^SSl
1861, was held not to protect a police-officer who did not act in good faith , faith,
that is, with due care and attention. The clause 5. section 100, Code of Cri
minal Procedure, refers to property which is proved to have been stolen, and
not to anything which a police-officer may choose or imagine has been stolen.
Where a police-officer refused to let a person go home until he had given bail,
he was hell to have been guilty of wrongful restraint under section 339 of the
Penal Code. Sheo Sarun Sahai v. Mohamet Fuzal, 10 W. R., 20 (1868).
55. (/) Any officer in charge of a police-station may, in like Arre»t,
manner, arrest or cause to be arrested— robbers, etc.
(a) any person fouml taking precautions to concetl liis pre
sence within the limits of such station, under circum
stances which afford reason to believe that he is ta'dng
such precautions with a view to committing a cognizable
oflence ; or
(b) any person within the limits of sucli station who has no
ostensible means of subsistence, or who cannot give a sa
tisfactory account of himself ; or
(c) any pprson who is by repute an habitual robber, house
breaker or thief, or an habitual receiver of stolen propertv,
knowing it to be stolen, or who by repute habitually
commits extortion or in order to the committing of extor
tion habitually puts or attempts to put persons in fear of
injury.
(2) This section applies also to the police in the towns of Cal
cutta and Bombay.
[4 (Act IX of 1874). Any police-officer tiny, within the limits [Power to re-
of the towns of Calcutta, Madras, and Bombay, require any person who ?uireI,tapto>rem
is apparently a vagrant to accompany him or nny other police-officer to, before Mag£-
and to appear before, the nearest Presidency Magistrate, and may, with- tr*te l
out those limits, require any such person to accompany him or any other
police-officer to, and to appear before, the nearest Justice of the Peace
exercising the powers of a Magistrate of the first class under the Code of
Criminal Procedure.]
46 General Provisions. [Chap. V-
[Summary in- [5 (Act IX of 1874). The Presidency Magistrate or Justice of the

rai'uvs dream- Peace shall in such case, or in any other case where a person apparently a
stances.] vagrant, comes before him, make a summary inquiry into the circumstances
of^vaKrîicy1] an<* cnarac'er °f *ne apparent vagrant ; and, if he is satisfied that such
person is a vagrant he shall record in his office a declaration to that effect.
vrorkTouseV0 " '3 further °f opinion that the vagrant is not likely to obtain
employment at once, or if he has reason to believe that a declaration of
vagrancy has on any former occasion been recorded in respect of such
vagrant, he shall require the vagrant to go to a Government work-house,
and shall draw up an order to that effect.
The vagrant shall then be placed in charge of the police for the pur
pose of being forwarded to the work-house, and the said order shall be
a sufficient authority to the police for retaining him in their charge while
he is on his way to the work-house, and to the governor of the work
house for receiving and detaining such vagrant.]
[Wandering
nnd dangerous -1-u » XXXVI
. „ ,. of „1858).' It shall. . be the
, duty• *. of every
-i Da-
Lunatics to bo rogah or District Police-officer to apprehend ana send to the Magis-
Idrtrete.thCerti- trate *N persons found wandering at large within his district who are
ficate and order deemed to be Lunatics, and all persons believed to be dangerous by
Asyiruro.Pincer- reason of lunacy. Whenever any such person as aforesaid is
Lunaticrnay be brought before a Magistrate, the Magistrate, with the assistance of a
committed to Medical Officer, shall examine such person, and if the Medical Officer
friendlTor'se1!!? sha11 s'g" a certificate in the Form A. in the schedule to this Act,
to a Lunatic and the Magistrate shall be satisfied on personal examination or other
»j um.j proof that such person is a Lunatic and a proper person to be
detained under care and treatment, he shall make an order for such
Lunatic to be received into the Asylum establiphed for the Division
in which the Magistrate's jurisdiction is situate, or, if such Lunatic
is not a native of the country, aud the circumstances of the case
so require, into a Lunatic Asylum at the Presidency ; and shall
send the Lunatic in suitable custody to t'le Asylum mentioned in such
order : Provided that, if any friend or relative of any Lunatic, who is
believed to be dangerous, shall undertake, in writing to the satisfaction
of the Magistrate, that such Lunatic shall be properly taken care of,
and shall be prevented from doing injury to himself or others, the
Magistrate, instead of sending him to an Asylum, may make him over
to the care of such friend cr relative : Provided, also, that, if any
such friend or relative shall desire that the Lnnatic may be sent to a
licensed Asylum instead of the public Asylum of the Division, and
shall engage, in writing to the sa:isfaction of the Magistrate, to pay the
expenses which may be incurred for the lodging, maintenance, medicine,
clothing, and care of the Lunatic in such Asylum, the Magistrate may
send the Lunatic to the licensed Asylum mentioned in the engagement.]
Publio ser- A warrant was issued by a Magistrate for the arrest of one Dalip under
ration" 'of" "Is 8ecti?n 1 14 of tl)e Code of Criminal Procedure. The warrant was sent to a
duty as such— certain thana to be executed. It was there, after being copied into a book
Arrest without kept for that purpose at the thana, made over to a particular constable for
rityT"unU(tood exec,lti°n- When the constable to whom the warrant had been made over
faith—Assault had left the thana, it was discovered that Dalip was in a village other than
airest-Ri'ht of t'lat wnicn ne bad 1,00,1 s"PP0Se ' to be. Thereupon the officer tempora-
private defence, rily in charge of the thana, made a copy from the book at the thana,
S. 56 ] General Provisions. 47
endorsed on the back the names of one Nazir Hussain and some other «>
constables, and, having signed the endorsement, sent Nazir Hussain and the
others out with this paper to arrest Dalip. Nazir Hussain and his companion
arrested Dalip ; but, as they were returning with him in custody some of
Dalip's friends, aided by Dulip himself, attacked them, rescued Dalip, and
caused hurt to the police. Held, that the police-officers concerned in arresting
Dalip under the circumstunces above described were not acting in the lawful
discharge of their duty within the meaning of section 332 of the Penal
Code, so as to render the accused liable to conviction under that section ;
but, inasmuch as they were acting in good faith, under the colour of their
office, section 99 of the Penal Code applied, and Dalip and his associates
might be properly convicted under sections 147 and 323 of the Code. The
words ' 1 in the discharge of his duty as such public servant " in the earlier
portion of section 332 of the Penal Code mean in the discharge of a duty im
posed by law on such public servant in the particular case, and do not cover
an act done by him in good faith under colour of his office. Queen-Empress
v. Dalip, I. L. K., 18 All., 246 (1896).
Where a person is arrested by the police under the provisions of section f"c^nqe"te "
55 of the Code of Criminal Procedure, 1882, he should always be given the persons nrreated
option of release on reasonable bail being supplied. In re Daulat Sing, under the pro-
I. L. R., 14 All., 45 (1891). Ij°'°n§.
An order was issued to a police-officer directing him to arrest K under A""™** of person
section 55 of the Criminal Procedure Code, 1882, as a person of bad livelihood. security forp<>o«l
K, with the assistance of three others, resisted apprehension and escaped, behaviour- Es-
Ileld, that K was not charged with an "offence" within the meaning of that nrj£,t'ro,n "uch
term as defined in section 40 of the Penal Code, and that consequently no
offence made punishable by section 224 or section 225 of the Penal Code had
been committed in connection with his evasion of arrest. Queen-Empress v.
Karulhaia, I. L. R., 7 All., 67 (1884).
An escape from custody when being taken before a Magistrate for the Escape from
purpose of being bound over to be of good behaviour, is not punishable under i)'!",t,™'tîlf n'''le
either section 224 or section 225 of the Penal Code. The Empress v. Shasti before a Mnîs-
thurn Napit, I. L. R., 8 Cal., 331 < 1882).
56. (/) When any officer in charge of a police-station requires whrnTîice-
any officer subordinate to him to arrest without a warrant ( other- "^Minareô"
wise than inbis presence) any person who may lawfully be arrested arrest without
without a warrant, he shall deliver to the officer required to make warrant-
the arrest an order in writing, specifying the person to be arrested
and the offence or other cause for which the arrest is to be made.
(2) This section applies also to the police in the towns of
A warrant was issued by a Magistrate for the arrest of one Dalip under Public, servant
Bection 114 of the Code of Criminal Procedure, 188 :. The warrant was sent tion of his* duty
to a certain thana to be executed. It was there, after being copied into a »» such-Arrest
book kept for that purpose at the thana, made over to a particular constable en't''0 authOTity
for execution. When the constable to whom the warrant had been made over but in (food
had left the thana, it was discovered that Dalip was in a village other than that ^tll—i*""^'^.
in which he had been supposed to be. Thereupon the officer temporarily in ing arrest— a
charge of the thana made a copy from the book at the thana, endorsed on the KiKht of private
back the names of one Nazir Hussain and some other constables, and, having us*81100,
signed the endorsement, sent Nazir Hussain and the others out with this paper
to arrest Dalip. Nazir Hussain and his companion arrested Dalip ; but as
they were returning with him in custody, some of Dalip's friends, aided by
Dalip himself, attacked them, rescued Dalip, and caused hurt to the police.
I/ell, tliat the police officers concerned in arresting Dalip under the circum
stances ahove described were not acting in the lawful discharge of their duty
within the meaning of section 332 of the Penal Code, so as tj render the
accused liable to conviction under that section ; but, inasmuch as they were
acting in good faith, under the colour of their office, section 99 of the
Penal Code applied, and Dalip and his associates might be properly convicted
under sections 147 and 323 of the Code. The words "in the discharge of his
duty as such public servant" in the earlier portion of section 3 2 of the Penal
Cole mean in the discharge of a duty imposed by law on such public servant
in the particular case, and do not cover an act done by hi n in good faith
under colour of his office. Queen-Empress v. Dulip, I. L. It., 18 All.,
245 (1896).
Arrest without Section 140 of the Code of Criminal Procedure, 1882, does not apply to
warrant-Da- a case of arrest for dacoity made without warrant by a subordinate police-
colty- officer in the presence of a head constable, who authorized him to make the
arrest. The Queen v. Shaikh Emoo ; The Queen v. Sugar liewah, 11 W. R., 20
(1869).
Torture - Ar- " It seems to be generally supposed, and the supposition seems to be
•est and wronK- generally acted on, that police-officers, in making enquiries into criminal
bypdice-^fflcer. CU8esi are limited only by their own discretion as to what persons they may
arrest and detain in custody. But, so far from this being the case, the
powers of a police-officer to arrest without warrant are strictly defined by
the Code of Criminal Procedure, 1861. The widest power is that conferred
by para. 2 of section 100, which provides that a police-officer may arrest with
out orders from a Magistrate, and without warrant any person against whom
a reasonable complaint has been made, or a reasonable suspicion exists of his
having been concerned in any offence specified in the schedule to the Act as
offences for which police-officers may arrest without a warrant. What is a
reasonable complaint or suspicion must depend on the circumstances of each
particular case ; but it must be at least founded on some definite fact tending
to throw suspicion on the person arrested, and not on mere vague surmise or
information. Still less have the police any power to arrest persons as they
appear sometimes to do, merely on the chance of something being here
after proved against them. Any wilful excess by a police-officer of his legal
powers of arrest is, by section 220 of the Penal Code, an offence punishable
by imprisonment for seven years." Queen v. Beharu Sing, 7 W. R., at p. 5
(1867).
K^'uwUo give 57. (/) When any person who in the presence of a police-
officer has committed or has been accused of committing a non-
cognizablu offence, refuses, on demand of such officer, to give his
name and residence, or gives a name or residenoe which such
officer has reason to believe to be false, he may be arrestod by
such officer in order that his name or residence may be a oertuiued,
(2) When the true name and residence of such person have
been ascertained, he shall be released on bis executing a bond,
with or without sureties, to appear before a Magistrate if so
required :
Provided that, if such person is not residf-nt in British India,
the bond shall be secured by a surety or surtties resident in
British India.
(3) Should the true name and residence of such person not
be ascertained within twenty-four hours from the time of arrest,
Ss. 57-59-] General Provisions 49
or should he fail to execnte the bond, or, if so required -to famish
sufficient snraties, he shall forthwith be forwarded to the nearest
Magistrate having jurisdiction,
58- A polic9-officr
r may,
j > for .the purpose
r r t of arresting
n with- olenden of.into
out warrant any person whom he is authorised to arrest under other junsdic-
this Chapter, pursus such person into any place in British India. tl0ns'
59. (7) Any private person may arrest any person who, ^rrcst by pri-
in his view, commits a non-bailable and cogn'zable offence, or ePcr*ons-
who has been proclaimed as an offender ;
and shall, without nnnec3ssary delay, make over any person Procedure on
so arrested to a pol'ca-offieer, or, in the absence of a pol:ce officer, 8UcharrcsU
take such person to the nearest po'icc -station.
(2) If there is reason to believe that such person comes

under the provisions of section 54, a police-officer shall re-arrest
him.
(3) If there is reason to believe that he has committed a non-
cognizable offence, and he refuses on the demand of a police-officer
to give his name and resi ieaca, or gives a name or residence
which such officer has reason to believe to be false, he shall be
dealt with under the provisions of section 57. If there is no
sufficient reason to believe that he has committed any offenc9, he
shall be at onc3 released.
[3 (Act I of 1889). No piece of copper or bronze, or of any other [Prohibition of
metal or mixed metal, which, whether stamped or unstamped, is intended ™tc1'pcrsoii9of
to be used as money, shall be made except by the authority of the Pj60^8 ^JetjJ
Governor-General in Council.] money.]
[5 (Act I of 1889). (1) The offence of making, in contravention of
of section 8, such piece as is mentioned in that section, shall be a the last ("rc(?o-
eognizable offence. ing section.]
(2) Notwithstanding anything in the Code of Criminal Procedure,

1882, no other offence punishable under section 4 shall be a cognizable
offence, or, beyond the limits of a presidency-town, be taken cognizance
of by any Magistrate, except a District Magistrate or Subdivisional
Magistrate, without the previous sanction of the District Magistrate or
Subdivisional Magistrate.]
[12 (Act XI of 1878). When any person is found carrying or [Arrest of per-
conveying any arms, ammunition, or military stores, whether covered J^*^
by a license or not, in such manner or under such circumstances as to JJJJ^^JJJJ., fir'
afford just grounds of suspicion that the same are being carried by him
with intent to use them, or that the same may be used, for any unlawful
purpose, any person may, without warrant, apprehend him, and take
such arms, ammunition, or military stores from him.
4
5° General Provisions. [Chap. V.
wbere'SrrVs t' Person so apprehended, and any arms, ammunition, or niili-

made by person tary stores so taken by a person not being a Magistrate or police-officer,
or"* pofice-oflv sna" De delivered over, as soon as possible, to a police-officer.
c*r"^ All persons apprehended by, or delivered to, a police-officer,
and all arras and ammunition seized by, or delivered to, any such officer
under this section, shall be taken without unnecessary delay before
a Magistrate.]
^Todv of,r<r£ ^° s,1PPor' a conviction under section 225 of the Penal Code, it is not
v"tc r*rsoii.Pn necessary that the custody from which the offender is rescued should be that
of a policeman : it is enough that the custody is one which is authorized by
law : Held, therefore, that rescue from the custody of a private person who
had arrested a thief in the act of stealing was an offence. A Magistrate
tried A for theft and B and C for rescuing A from lawful custody and
convicted A, B, andCin one trial. A appealed, and B and C appealed se
parately. No objection was taken in the petitions of appeal to the procedure
of the Magistrate : Held, on revision, that the convictions might stand.
Queen-Empress v. Kutti, I. L. R., 11 Mad., 441 (1888).
Escape from I"'16 accused was arrested in the act of stealing and was handed over
lcfrnl custody, to the village Magistrate, who forwarded him in custody of the village ser
vants to a police-station. The accused escaped on the way. He was convic
ted under section 224 of the Penal Code. On appeal the conviction wus
reversed on the ground that the custody was not legal. Held, that the con
viction was right. Section 59 of the Code of Criminal Procedure, 1882. which
requires a private person who arrests a thief in the act to take the thief to
the nearest police-station, is sufficiently complied by sending the offender
in custody of a servant. Queen-Empress v. Potadti, I. L. B., 11 Mad., 480
(1888).
Person arrest- 60. A police-officer making an arrest without warrant shall,
before Ma*?*** without unnecessary delay and subject to the provisions heroin con-
tmte or officer tained as to bail, take or send the person arrested before a Majris-
iii charge of po- , . ' ip i m
lice-station. trate having jurisdiction in the case, or before the officer in charge
of a police-station.
Person arrest- W« No police-offic?r sha'l detain in custody a person arrest
ed not to be de- e,] without warrant for a longer period than, under all the circuin-
tained more than , . ,, ' , i • i i n • ,
twenty-foui stances ot the case, is reasonable and such period shall not, in the
im,rv absence of a special order of a Magistrate under section 167, ex
ceed twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's Court.
Police detcn- Where a Sub-Inspeptor of Police is charged with having detained prisoners
tion- for more than twenty-four hours, it is not necessary for the Crown to prove
that he detained them with a guilty knowledge, as section 124 of the Criminal
Procedure Code, 1872, imperatively lays down that accused persons are on no
account to be detained beyond that time except under special order of the
Magistrate, which was not obtained in this case. The Queen v. Busoorum D,iss,
19 W. B., 36 (1873).
Detention of EMd, that the order of a Magistrate sanctioning the detention by the po-
aceused by no- lice of an accused person for an indefinte period is illegal. At the expiration
jice—Remand. 0f twenty-four hours from the time of arrest, the accused muni be brought be
fore a Magistrate, who can then remand for a period not exceeding fifteen days
under section 224 of the Criminal Procedure Code. 1861. Ret), v. Surbya val'id
Dhahi. 5 Bom. H. C, (Crown cases) 31 (1868).
The pleader for the prisoner lays stress upon section 152 of the Code of Detention of «•
Criminal Procedure, 1861, as giving a police-officer power to detain an accused cuwdpewon by
person for a period not exceeding twenty-four hours without question. But we
read the section very different. We are of opinion that in no case is a police-
officer justified by that section in detaining a person for one single hour, ex
cept upon some reasonable ground justified by all the circumstances of the case.
It is for the prisoner to show that he had reasonable grounds, and he failed
to do so ; whereas it is clear he could have sent the accused party before the
Magistrate at once. We confirm the sentence, and reject the appeal with the
amendment that the sentence, in default of payment of the fine, be reduced to
three months, which is the longest term which the law admits of. Queen v.
Sttprownno Ghotnul, 6 W R., (?8 (18G6).
62. Officer? in charge of police-stations shall report to the J**j3£u8E!
District Magistrate, or, if he so directs, to the Subdivisional
Magistrate, the cases of all persons arrested without warrant.
within the limits of their respective stations, whether such persons
have been admitted to bail or otherwise-
63. No person who has been arrested by a police-officer shall Di»tiarg* of^
be discharged except on bis own bond, or on bail, or under the spe- tended.
cial order of a Magistrate.
64. When any offence is committed in the presence of a Ma- Sifted m Ma
gistrate within the local limits of his jurisdiction, he may himself ^*'™te" pre"
arrest or order any person to arrest the offender, and may there
upon, subject to the provisions herein contained as to bail, commit
the offender to custody.
65. Any Magistrate may at any time arrest or direct the Arrestjjg»
arrest, in his presence, within the locd limits of his jurisdiction, Magistrate,
of any person for whose arrest he is competent at the time and in
the circumstances to issue a warrant.
66. If a person iu lawful custodv escapes or is rescued, the Power, on es-
,. 11, l i . cape, to pursue
person i rom whose custody ne escaped or. was rescued may im- and retake,
mediately pursue and arrest him in any place in British India.
67. The provisions of sections 47 48 and 49 shall apply to S^rj7.°«
arrests under section 66 although the person making any such ar- •MjJ
rest is not acting under a warrant and is not a police-officer having •wHonae."' '
authority to arrest.
CHAPTER VI.
Ok Phockssks to Compel Appearance
A. — Summons.
68. (/) Every summons issued by a Court under this Code Form of tum-
shall be in writing, in duplicate, signed and sealed bv the presid- ra0""'
ing officer of such Court, or by such other officer* as the High
Court may from time to time, by rule, direct.
52 General Provisions. [Chap. VI,
tho™ serve?. (2) Such snmm°ns shall be served by a po'ice-officer, or, sub
ject to such rules as the Local Government may prescribe in this
behalf, by an officer of the Court issuing it or other public servant.
For form of summons, see schedule V, No. 1.

restineier'utkm ^ warrant issued for the arrest of a debtor under the provisions of section
of a decree only 251 of the Civil Procedure Code, was initialled by the Munsarim of the Court,
initialled by pro- sealed with the seal of the Court, and delivered to the proper officer for
per officer. execution. The debtor forcibly resisted the officer, and was tried and convicted
under section 353 of the Penal Code, of assaulting a public servant in the
execution of his duty as such. In revision it was contended, with reference
to the requirements of section 251 of the Civil Procedure Code, that the war
rant of arrest, having been initialled only was bad, and the officer could not
legally execute it, and consequently no offence under section 353 of the Penal
Code had been committed. Held, that this contention could not be allowed,
and, although it was proper that the person signing a warrant should write his
name in full, it could not be said that because the signature was confined to the
initials of the name, it was not the duty of the officer to execute the warrant.
Held, also, with reference to section 99 of the Penal Code, that the act of the
accused did not cease to be an offence on the ground that it was done in the
exercise of the right of private defence. Queen-Empress v. Janki Prasad, I. L.
R., 8 All., 293 (1886).
Sum m on s— A man who in obedience to a summons to appear and answer a criminal
Disobedience, charge, attends a Magistrate's Court, but finding the Magistrate not present at
the time mentioned in the summons, departs without waiting for a reasonable
time, is guilty of an offence under section 174 of the Penal Code. Queen-
Empress v. Kisan Bapu, I. L. R., 10 Bom., 93 (1885).
A summons should be clear and specific in its terms as to the title of the
in0oijaltence"to Court, the place at which, the day, and the time of the day when, the atten-
a summons.— dance of the person summoned is required, and it should go on to say that such
Summons, what p0rson jg not t0 ]euv0 the Court without leave, and, if the case in which he has
it should con- f .... , .. . ,. . .
tain—Omission been summoned is adjourned, without ascertaining the date to which it has
and S oF'a? ^ccn n^j0,lrnCf' Where 3 summons did not mention the place at which, or
tendance. " the time of the day when, the attendance of the person summoned was required,
held, that such person could not lawfully be punished under section 174 of the
Penal Code for non-attendance in obedience to such summons. Empress of
India v. Ram Saran, I. L. K., 5 All., 7 (1882).
Warrant—Wit- A Magistate cannot issue a warrant of arrest against a witness under section
nosa-Disobedi- 260 of theCode of Criminal Procedure, 1861, unless he is first satisfied that the
ence or order. wjtncg8 has disobeyed a summons which was served on him. A Magistrate is
not justified by section 206 of the Code to take a poi son, without any previous
notice or summons, from among the audience or attendant witnesses in open
Court, and place hjm in the dock to be immediately tried upon a charge which
has already boon commenced to be entertained against other prisoners, and on
which evidence had already been givn . That section applies to investigations
preliminary to commitment for a subsequent trial, and not to cases when the
trial is actually being proceeded with . Queen v. Sutherland ; Queen v. Na-
tain Sing, 14 W. R., 20 (1870).
Summons how (7) The summons shall, if practicable, be served per
sonally on the person summoned, by delivering or tendering to
him one of the duplicates of the summons.
(2) Every person on whom a summons is so served shall, if *f\atuf~
so required by the serving officer, sign a receipt therefor on the mdS». °r *um*
buck of the other duplicate.
(3) Service of a summons on an incorporated company or
other body corporate may be effected by serving it on the secre
tary, local manager or other principal officer of the corporation, or
by registered post letter addressed to the chief officer of the cor
poration in British India. In such case the service shall be deem
ed to have been effected when the letter would arrive in ordinary
course of post.
A mero refusal to sign a receipt for .1 summons is not an offence under Refusal to s«?n
section 173 or section 180 of the Penal Code. Queen-Empress v. Krishna Go- gUmmona °r
bind Das, I. L. R., 20 Cal , 358 (1892).
173 Aofrefusal to give a receipt
Lire,forBhoobunesliwar
a summons is notDutt.l
an offence
L. B.,under section
621 S?'"'^','" *V'.8
the Ponul Code. 3 Cal., ^,lsp
(1877).
70. Where the person summoned cannot by the exercise °f SlreOTfsummon-
due diligence be found the summons may be served by leaving ed cannot be
one of the duplicates for him with some adult male member of his
family, or, in a presidency-town, with his servant residing with
him ; and the person with whom the summons is so left, shall, if
so required by the serving officer, sign a receipt therefor on the
back of the other duplicate.
71. If service in the manner mentioned in sections 69 and 70 Pr^"™^11Jetn
cannot by the exercise of due diligence be effected, the serving be effected as
officer shall affix one of the duplicates of the summons to some bsfope nrovlded-
conspicuous part of the house or homestead in which the person
summoned ordinarily resides ; and thereupon the summons shall
be deemed to have been duly served.
7Z. (/) Where the person summoned is in the active service serviceon ser-
of the Government or of a Railway Company, the Court issuing ™e"\0r oÊTii-
the summons shall ordinarily send it in duplicate to the head ofw»y company,
the office in which such person is employed ; and such head shall
thereupon cause the summons to be served in manner provided by
section 69, and shall return it to the Court under his signature
with the endorsement required by that section.
(<?) Such signatur3 shall be evidence of due service.
73. When a Court desires that a summons issued by it shall ônSM°utJja'<s"
be served at any place outside the local limits of its jurisdiction, local limits.
it shall ordinarily send such summons in duplicate t j a Magistrate
within the local limits of whose jurisdiction the person summoned
resides or is, to be there served.
74. (7) When a summons issued by a Court is served outside m™chf cases?*
the local limits of its jurisdiction, and in any case where the officer fig oncVnot
who has served a summons is not present at the hearing of the case, present.
General Provisions, [Chap. VI.
54
an affidavit, purporting to be made before a Magistrate, that such
summons has been served, and a duplicate of the summons pur
porting to be endorsed (in manner provided by section 69 or sec
tion 70) by the person to whom it was delivered or tendered or
with whom it was left, shall be admissible in evidence, and the
statements made therein shall be deemed to be correct unless and
until the contrary is proved.
{2) The affidavit mentioned in this section may be attached
to the duplicate of the summons and returned to the Court.
B. — Warrant of Arrest.
rant" oF'nrtlwit 75> (2) Every warrant of arrest issued by a Court under this
Code shall be in writing, signed by the presiding officer, or, in the
case of a Bench of Magistrates, by any member of such Bench ;
and shall bear the seal of the Court.
Continuance of
ar celled(2)by Every
warrant of "r
re«t."" suchwhich
the Court warrant shallit, remain
issued or untilinit force until it is euii-
is executed.
For form oj warrant oj arrest, see schedule V, No. 2.

Warrant of ar- A public servant executing a warrant of arrest which in not signed by
of8Ma|i«trate— l'ie Magistrate as required by section 75 of the Criminal Procedure Code,
Initials—Noti- 1882, but only bears his initials and the substance of which is not notified to
ncation of sub- the person to be arrested as required by section 80 of the Code, cannot be
rant?* ° W" said to be acting in the discharge of his public functions in a inanuer autho
rised by law. A person obstructing him cannot be convicted under section 18b'
of the Penal Code. Abdul Qafur v. Queen-Empress, I. L. R., 23 Cal., 890
(1896).
Warrant of ar- A warrant issued for the arrest of a debtor under the provisions of section
rest inexecuUon 251 of the Civil Procedure Code, was initialled by the Munsariin of the Court,
fuitialledb} pro- sealed with the seal of the Court, and delivered to the proper officer for exe-
per officer— cution. The debtor forcibly resisted the officer, and was tried and convicted,
o^.ptHvaTê-4 un(ler section 353 of the Penal Code, of assaulting a public servant in the exe-
fenpp. cution of his duty as such. In revision, it was contended, with reference to the
requirements of section 251 of the Civil Procedure Code, that the warrant of
arrest, having been initialled only, was bad and the officer could not legally
execute it, and consequently no offence under section 353 of the Penal Code
had been committed. Held, that this contention could not be allowed, and,
although it was proper that the person signing a warrant should write his name
in full, it could not be said that because the signature wa« confined to the ini-
itials of the name, it was not the duty of the officer to execute the warrant.
Held, also, with reference to section 99 of the Penal Code, that the act of
the accused did not cease to be an offence on the ground that it was done in
the exercise of t'.e right of private defence. Queen-Empress v. Janhi Prasad
and others, I. L. R., 8 All., 293 (1886).
cVra'mitment- The siSnature of a Magistrate to a warrant of commitment under section
Signatureof Ma- 303 of the Code of Criminal Procedure, 1872, should not be affixed by a
Kistrate-8 u m- stamp. In summary trials under the provisions of Chapter XVIII of the
3 Judgment Code of Criminal Procedure, 1872, the record in non-appealable cases and the
—District Magi»- judgment in appealable cases must be written by the Magistrate. A Magis
tral? ofU™™ious trate \a 8UCU cases is not authorised ito depute that duty to a clerk, nor to
oflence. ajfixihis signature to ithe record or judgment by a stamp. Where a head
constable of police of many years' service was charged with criminal inti
midation with a view to prevent a person from giving evidence against
serious offenders and the District Magistrate tried the case summarily under
the special powers given by section 222 (10) of the Code of Criminal Proce
dure, 1872: field, that the case ought not to have been tried summarily.
Subrantana Ayyar v. The (Jueen, I. L. K., 6 Mad., 3% (1883).
A warrant issued under section 76 of the Code of Criminal Procedure, 5j5^Jt—1SSI
1861, should be sealed, should describe the person to be apprehended under Omission to
it with reasonable particularity so that there may bo no difficulty in establish- seal—Descrip-
ing his identity, and should be subscribed with the name and full official title b^" Matured-
of the Magistrate issuing it. Where a warrant was defective in all the above Signature,
particulars, the prisoner apprehended under it was released by the High
Court. In re James /fastings, 9 Bom. H. C, 154 (1872).
A warrant, which did not specify a punishable offence, and which had Warrant—Spe-
beeu issued upon a statement not sufficient to make out any offence, duashed. ojflcstion ot
In re Srimali Bidhumukki Debt, 6 Ben. L. R., App. 129 (1871). onence.
Section (!8 of the Criminal Procedure Code, 1861, applies only to cases in Arrest-War-
which the private individual, who is injured or aggrieved, or some one on his "".'T^g1"
part, does not come forward to make a formal complaint ; and even in such P '
cases the jurisdiction to the Magistrate to arrest requires for its foundation a
personal knowledge of the fact that an offence has been committed. Know
ledge derived from testimony legally given before him, the report of the police,
or any statement not on oath, or short of an actual formal complaint, is not
sufficient to give the Magistrate jurisdiction to issue a warrant under section
77 of the Criminal Procedure Code, 1861, and the corresponding section of the
amended Act, a Magistrate may issue a warrant to an unofficial person, but he
can only do so when he cannot obtain the assistance of the police, or when
the urgency is imminent. A commitment to hqjut, before evidence is re
corded, is illegal. The Queen v. Surrendro Nath Roy, 13 W. P.., 27 (1870).
The mere showing to a witness of a summons issued under section 186 Summons—
of the Criminal Procedure Code, 1861, is not sufficient service. Either the ori- „™m 0 ,um"
ginal should be left with the witness, or should be exhibited to him and a copy
of it delivered or tendered. Reg. p. Karsanlal Danatran, 5 Bom. H. C.,
20 (1868).
Refusing to sign a summons by an accused person does not constitute the Service of sum-
offence of intentionally preventing the service of a summons on himself, j^0,!^ a "^m-
under section 173 of the Penal Code Reg. v Kalya bin Fakir, 5 Bom. H. mona.
C, 34 (1868 )
76. (/) Any Court issuing a warrant for the arrest of any 5|^mûrity
person may in its discretion direct by endorsement on the warrant to be '
that, if such person executes a bond with sufficient sureties for his
attendance before the Court at a specified time and thereafter un
til otherwise directed by the Court, the officer to whom the war
rant is directed shall take such security and shall release such per
son from custody.
(2) The endorsement shall state —
((t) the number of sureties :
(d) the amount in which they and the person for whoso
arrest the warrant is issued, are to be respectively
bound ; and
(c) the time at which he is to attend before the Court.
56 General Provisions. [Chap. VI.
to be """'ded ^ Whenever security is taken under this section, the officer

' to whom the warrant is directed, shall forward the bond to the
Court.
For form of endorsement, see schedule V, No. 2.
warrant to 77. (/) A warrant of arrest shall ordinarily be directed to
Whom directed. one or more police-officers, and when issued by a Presidency Ma
gistrate, shall always be so directed; but any other Court issuing
such a warrant may, if its immediate execution is necessary and
no police-officer is immediately available, direot it to any other
person or persons ; and such person or persons shall execute the
same.
wrorai'pemns (?) When a warrant is directed to more officers or persons
than one, it may be executed by all, or by any one or more, of
them.
Warrant to an Under section 77 of the Criminal Procedure Code, 1861, and the corres
unofficial per ponding
son. section of the amended Act, a Magistrate may issue a warrant to an
unofficial person, but he can only do so when lie cannot obtain the assistance of
the police, or when the urgency is imminent. The Queen v. Surrendro Nath
Roy, 13 W. R., 27 (1870).
Warrant may 78. (7) A District Magistrate or Subdivisional Magistrate
be directed to
landholders, may direct a warrant to any landholder, farmer or manager of
etc
land within his district or subdivision for the arrest of any escaped
convict, proclaimed offender or person who has been accused of a
non-bailable offence, and who has eluded pursuit.
(2) Such landholder, farmer or manager shall acknowledge in
writing the receipt of the warrant, and shall execute it if the per
son for whose arrest it was issued, is in, or enters on, his land or
farm, or the land under his charge.
(<?) When the person against whom such warrant is issued
is arrested, he shall be made over with the warrant to the nearest
police-officer, who shall cause him to be taken before a Magistrate
having jurisdiction in the case, unless security is taken under sec
tion 76.
[Omission to [187 (P. C). Whoever, being bound by law to render or fur
assist public nish assistance to any public servant in the execution of his public
servant when
bound by law duty, intentionally omits to give such assistance, shall be punished
to give assis with simple imprisonment for a term which may extend to one month,
tance.]
or with fine which may extend to two hundred rupees, or with both ;
and if such assistance be demanded of him by a public servant legally
competent to make such demand for the purpose of executing any
process lawfully issued by a Court of Justice, or of preventing the
commission of an offence, or of suppressing a riot or affray, or of
apprehending a person charged with or guilty of an offence, or of
having escaped from lawful custody, shall be punished with simple
imprisonment for a term which may extend to six months, or with
fine which may extend to five hundred rupees, or with both.]
Ss. 77-83.] Qeneral Provisions, 57:
79. A warrant directed to any police -officer may also be warrant ^
executed by any otber police-officer whose name is endorsed police-officer,
upon the warrant by the officer to whom it is directed or en
dorsed.
80* The police-officer or other person executing a warrant Notification of
of arrest shall notify the substance thereof to the person to be warrant* °'
arrested, and, if so required, shall show him tti3 warrant-
A warrant issued for the arrest of a debtor under the provisions of Warrant of
section 251 of the Civil Procedure Code, was initialled by the inunsarim of Jfon^'adtecree
the Court, sealed with tho seal of the Court, and delivered to the proper only initialled
officer for execution. The debtor forcibly resisted the officer, and was tried proper
and convicted, under section 353 of the Penal Code, of assaulting a public 0 cer'
servant in the execution of his duty as such. In revision, it was contended,
with reference to the requirements of section 251 of the Civil Procedure
Code, that the warrant of arrest, having been initialled only, was bad and
the officer could not legally execute it, and consequently no offence under
section 353 of the Penal Code had been committed. Held, that this con
tention could not bo allowed, and, although it was propsr that tho person
signing a warrant should write his name in full, it could not be said that
because the signature was confined to the initials of the name, it was not
the duty of the officer to execute the warrant. Queen-Empress v. Janki
Prasad, I. L. B., 8. All., 203 (1886).
The apprehension of a judgment-debtor in execution of a decree with- Arrest of juda-
out the officer making the apprehension having the warrant of the Court pre<^t^t,"ror"
executing the decree in his possession at the time of making the apprehen- \varrant'-0Esoape
siou is illegal ; and therefore in such a case the judgment-debtor does not rroln 'aw'nl
render himself liable to punishment under section 651 of the Civil Procedure c",t0<,}'-
Code, if he escapes from the custody of the officer making the apprehension.
Empress of India v. Amur Nath, I. L. R., 5. All , 313 (1883).
81. Tho police-officer or other person executing a warrant Pcraon arrested
of arrest shall (subject to the provisions of section 76 as to security; t£r^b£o„rt"
without unnecessary delay bring the person arrested before the wi'h°»« delay.
Court before which he is required by law to produce such person.
_ . . 8, Z.r ,.A warrant of arrest may

J be executed at any
J place
r in may
Wher«be w»rrant
execn-
Bntish India. ted.
83. ( /) When a warrant is to be executed outside the local ^^S"^'"^
limits of the jurisdiction of the Court issuing the same, such Court cation outside
may, instead of directing such warrant to a police-officer, forward iunsdl('tl0n-
the same by post or othe. wi.se t > any Magistrate or District Super-
rintendeut of Police, or the Commissioner of Police in a Presidency-
town within the local limits of whose jurisdiction it is to be exe
cuted.
(2) The Magistrate or District Superintendent or Commis
sioner to whom such warrant is so forwarded shall endorse his
name thereon and, if practicable, cause it t > be executed in man
ner hereinbefore provided within the local limits of his jurisdic
tion.
5* General Provisions. [Chap. VI.
Breach of Con- Criminul Procedure Code, section 8il, is applicable to warrants issued
offniw'Sfttr unt'er Breach of Contract Act, 1859, and they can be executed outside the juris-
ra„t. diction of the Court which issued them. Queen- Empress v. Muthayya, I. L.
B., 20 Mad., 457 (1897).
Warrant direc- 9r%» (1) When a warrant directed to a police-officer is to he
ted to police- executed beyond the local limits of ths jurisdiction of the Court
ciltUm ouuhuT issuing the same lie shall ordinarily take it for endorsement either
jurisdiction. ô a Magistrate or to a police officer not below the rank of an
officer in charge of a station, within the local limits of whose juris
diction the warrant 's to be executed.
(2) Such Magistrate or police-officer shall endorse his name
thereon, and such endorsement shall be sufficient authority to the
police-officer to whom the warrant is directed to execute the same
within such limits, and the local police shall, if so required, assist
such officer in executing such warrant.
(3) Whenever there is reason to believe that the delay occa
sioned by obtaining the endorsement of the Magistrate or police-
officer within the local limits of whose jurisdiction the warrant is
to lie executed, will prevent such execution, the pjlice-offieer to
whom it is d'rected may execute the same without such endorse
ment in any place beyond the local limits of the jurisdiction of the
Court which issued it.
(4) Ihis section applies also fcu the police in the towns of
Calcutta and Bomby.
a/
Procedure on 85. When a warrant of arrest is executed outside the district
Stta1nst>,whomn *n which it was issued, the person arrested shall, unless the Court,
warrant issued . which issued the warrant, is within twenty miles of the place of
arreBtor Is nearerthan the Magistrate or Distr ct Superintendent of
Police or the 0 Jtn nissi.mer of Police in a Presidency-town
within the local limits of whose jurisdiction the arrest was made, or
unless security is taken under section 70, be taken before such
Magistrate or Commissioner or District Superintendent.
Procedure by 86. (1) Such Magistrate or District Superintendent or Com-
tore'whom peT! niissioner shall, if the pers m arrested appears to be the person
son arrested is intended by the Court which issued the warrant, direct his re
moval in custody to such Court
Provided that, if the ofleuce is bailable, and such person is
ready and willing to give bail to the satisfaction of suoh Magistrate,
District Superintendent or Commissioner, or a direction has been
endorsed under section 76 on the warrant, and such person is ready
and willing to give the security required by such direction, the
Magistrate, District Superintendent or Commissioner shall take
such bailor security, as the case may be, and forward the bond to
the Court which issued the warrant.
Ss, 84-87.] General Porvisions. 59
(2) Nothing in this section shall be deemed to prevent a
police- officer from taking security under section 76.
For form oj bond and bail bond, see schedule V, No. 3.
C. —Proclamation and Attachment.
87. (7) W anv Court lias reason to believe (whether after ^reclamation^
taking evidence or not) that any person against whom a warrant wonSfng?"
has been issued by it lias absconded or is concealing himself so
that such warrant cannot be executed, such Court may publish a
written proclamation requiring him to appear at a specified place
and at a specified time not less than thirty days from the date of
publishing such proclamation.
(.2) The proclamation. shall be published as follows:—
(a) it shall be publicly read in some conspicuous place of the
town or village in which such person ordinarily resides ;
(b) it shall be affixed to some conspicuous part of the house
or homestead in which such person ordinarily resides
or to some conspicuous place <>!' such town or village ;
and
(c) a copy thereof- shall b3 affixed to some conspicuous part
of the Court-house.
(3; Astitement in writing by the Court issuing the procla
mation to the effect that the proclamation was duly published on a
specified day shall be conclusive evideiicj that the requirements of
this section have been complied with and that the proclamation
was published on such day.
For form of proclamation, see schedule F, Nos. 4 a?id y.
[174 (P. C.) Whoever, being legally bound to attend iu person »Non.attend.
or by an agent at a certain place and time in obedience to a summons, ance in one.
notice, order, or proclamation proceeding from any public servant legal- der'fmm a'pX
ly competent, as such public servant, to issue the same, intentionally lio servant.]
omits to attend at that place or time, or departs from the^place where he
is bound to attend before the time at which it is lawful for him to de
part, shall be punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to five hundred
rupees, or with both ; or if the summons, notice, order, or proclamation
is to attend in person or by agent iu a court of justice, with simple im
prisonment for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
Illustrations.
(a) A, being legally bound to appear before the Supreme Court
at Calcutta, in obedience to a subpa-na issuing from that court, inten
tionally omits to appear. A has committed the offence defined in this
section.
6o General Provisions. [Chap. VI.
(b) A being legally bound to appear before a Zillah Judge, as a

witness, in obedience to a summons issued by that Zillah Judge, inten
section.]
[Disobedience [188 (P. C.) Whoever, knowing that, by an order promulgated
nranuUmtcd'by Dv a public servant lawfully empowered to promulgate such order, he is
a public ser- directed to abstain from a certain act, or to take certain order with cer-
va tain property in his possession or under his management, disobeys
such direction, shall, if such disobedience causes or tends to cause ob
struction, annoyance, or injury, or risk of obstruction, annoyance, or
injury, to any person lawfully employed, be punished with simple impri
sonment for a term which may extend to one month, or with fine which
may extend to two hundred rupees, or with both ; and if such disobe
dience causes, or tends to cause, danger to human life, health, or safety,
or causes, or tends to cause, a riot or affray, shall be punished with im
prisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with
both.
Explanation. —It is not necessary that the offender should intend to
produce harm, or.contemplate his disobedience as likely to produce harm.
It is sufficient that he knows of the order which he disobeys, and that his
disobedience produces, or is likely to produce, harm.
Illustration.
An order is promulgated by a public servant lawfully empowered to
promulgate such order, directing that a religious procession shall not
pass down a certain street. A knowingly disobeys the order, and there
by causes danger of riot. A has committed the offence defined in the
section.]
Proclamation An accused person for wliose arrest a warrant had been issued having ab-
for person absconded, a proclamation was issued and affixed to the Court-house on the 6th
tachmm\V*o7hia °^ November, requiring him to appear on the 11th of December, 1893, and his
property- 1 rre- property was attached. The proclamation was not published at the village
fication of pro- wliere t,lu accused resided until the 15th of November. The accused surren-
c'laVation. dered on the 25th of June, 1894, and applied for restoration of the property un
der Criminal Procedure Code, 1882, section 89. and an order was made by which
the restoration of his property was refused. The accused preferred a petition to
the High Court for the revision of that order. Held, that there was no legal
proclamation under Criminal Procedure Code (1882), section 87, and that the
order should be set aside and the attachment declared void. (Jwen-Empress
v. Subbarayar, I. L. B., 19 Mad., 3 (1895).
Attachment of 88- (/) The Court issuing a proclamation under section 87
Lo^'abSondlnT may at anytime order the attachment of any property, moveable
or immoveable, or both, belonging to the proclaimed person.
(2) Such order shall authorise the attachment of any property
belonging to such person within the district in which it is made ;
and it shall authorise the attachment of any property belonging to
such person without such district when endorsed by the District
Magistrate or Chief Presdency Magistrate within whose district
such property is situate.
S. 88.] General Provisions. 61
(3) If the property ordered to be attached is a debt or other

moveable property, the attachment under this section shall be
made—
(a) by seizure ; or
(6) by the appointment of a receiver ; or
(c) by an order in writing prohibiting the delivery of such
property to the proclaimed person or to any one on his be
half ; or
(d) by all or any two of such methods as the Court thinks
fit.
(■J) If the property ordered t) be atttached is immoveable
the attachment under this section shall, in the case of land paying
revenue to Government, be made through the Collector of ths dis
trict in which the land is situate, and in all other cases —
(e) by taking possession ; or
(f) by the appointment of a receiver ; or
(g) by an order in writing prohibiting the payment of rent or
delivery of property to the proclaimed person or to any
one on his behalf ; or
(A) by all or any two of such methods as the Court thinks fit.
(J) If the property ordered to be attached consists of live
stock or is of a perishable nature, the Court may, if it thinks it ex
pedient, order immediate sale thereof, and in such ca*e the pro
ceeds of the sal J shall abide the order of the Court.
(6*i 1 he powers, duties and liabilities of a receiver appointed
under this section shall be the same as those of a receiver appointed
under Chapter XXXVI of the Code of Civil Procedure.
(7) If the proclaimed person does not appear within the time
specified in the proclamation, the property under attachment shall
be at the disposal of Government ; but it shall not be sold until the
expiration of six months from the date of the attachment, unless it
is subject to speedy and natural decay, or the Court considers that
the sale would be for the benefit of the owner, in either of wh:ch
cases the Court may cause it to be sold whenever it thinks fit.
For form oi order of attachment, see schedule V, Nos. 6 and 7.
[503 (Act XIV of 1882). Whenever it appears to the Court to [Power ot
be necessary for the realization, preservation, or better custody or man- j^Viîvers!]
agement of any property, moveable or immoveable, the subject of a suit
or under attachment, the Court may, by order—
(«) appoint a receiver of such property, and if need be,
(A) remove the person in whose possession or custody the property
may be from the possession or custody thereof ;
62 General Provisions. [Chap. VI
(c) commit the same to the custody or management of such re

ceiver ; and
(</) grant to such receiver such foe or commission on the rents and
profits of the property by way of remuneration as the Court
thinks fit, and all such powers as to bringing and defending
suits, and for the realization, management, protection, preser
vation, and improvement of the property, the collection of
the rents and profits thereof, the application and disposal of
such rents and profits, and the execution of instruments in
writing, as the owner himself has, or such of those powers as the
Court thinks fit.
Iliabilities.]
Receiver's EveryJ receiver so appointed
11 shall—
(e) give such security (if any) as the Court thinks fit duly to ac
count for what he shall receive in respect of the property ;
(/) pass his accounts at such periods and in such form as the
Court directs ;
(t'l Pay tne balance due from him thereon as the Court directs ; and
(/<) be responsible for any loss occasioned to the property by his wil
ful default or gross negligence.
Nothing in this section authorizes the Court to remove from the
possession or custody of property under attachment any person whom
the parties to the suit, or some or one of them, have or lias not a present
right so to remove.
L*'maCbeleCR C504 <Act XIV °f 1882 - WllC" tlie Pr0Perty is laml Pay'»g rc '
pointed recei- venue to Government, or land of which the revenue has been assigned or
Ter-1 redeemed, and the Court considers that the interests of those concerned
will be promoted by the management of the Collector the Court may,
with the consent of the Collector, appoint him to be receiver of such pro
perty.]
ICourU cm- [505 (Act XIV of 1882). The powers conferred by this chapter
thUdwpterl" sl,a^ be exercise(l on'y High Courts and District Courts : Provided
that, whenever the Judge of a Court subordinate to a District Court
considers it expedient that a receiver should be appointed in any suit be
fore him, he shall nominate such person as he considers fit for such ap
pointment, and submit such person's name, with the grounds for the no
mination, to the District Court, and the District Court shall authorize
such Judge to appoint the person so nominated, or pass such other order
as it thinks fit.]
[Inveatigjtion [ 278 (Act XIV of 1882). If any claim be preferred to, or any
Sn/'ciTitionS' objection be made to the attachment of, any property attached in execu
te attachment tion of a decree, on the ground that such property is not liable to such
property.] attachment, the Court shall proceed to investigate the claim or objection
with the like power as regards the examination of the claimant or objec
tor, and in all other respects, as if lie was a party to the suit :
Provided that no such investigation shall be made where the Court
considers that the claim or objection was designedly or unnecessarily
delayed.
General Provisions. 63
If the property to which the claim or objection applies has been ad

vertised for sale, the Court ordering the sale may postpone it pending
the investigation of the claim or objection.]
When a claim is muile to property attached under section 88 of the Code Attachment of
of Criminal Procedure, 1882, the Magistrate should stay the sale to give the ^S^mS^K
claimant time to establish his right If the Magistrate errs, the remedy of the person—claim to
aggrieved party is by civil suit and not by criminal revision petition Queen- ^J^^^1'
Empress v. K'imlappd Goundan, I. L. R., 20 Mad., 88 (18D6).
A' was convicted under section 176 of the Penal Code of having inten- O m i ■ ■ 1 o n to
tionally omitted to inform the police of the presence of V, a proclaimed offender, rive in{°^?{.^!
at a certain village. It was presumed by the Court that Fwas a proclaimed dnmat ionof
offender, because it was prove 1 that the property of V had been attached under offender—Proof,
the provisions of section 88 of the Code of Criminal Procedure, 1882. Held,
that the prosecutor was bound to prove the fact of proclamation . A person
legally bound to give information to the police of the presence of a proclaimed
offender at a certain place ought not to lie prosecuted for omitting to give such
information where the police are already aware of the fact. In re Pandya
Xaijal; I. L. R., 7 Mad., 4:(6 (1884).
There is no provision of law requiring a Magistrate who has attached pro- prope^-telong-
pcrty under section '8 of the Criminal Procedure Code, 1882, to investigate the ins to ^persons
claims of third persons to the ownership of such property. The proceedings pj^^dings *0f
of a Magistrate under section 88 of the Criminal Code are therefore not " judi- Magistrate un-
cicl proceeding" in the sense of section 4 (rf) of that Code. Queen-Empress cV,^Sm\'vfoce'-
v Sh o-Jihal liai,l L. K., 0 All., 487 (1884). '•dure Co de-
Judicial pro
ceedings."
.1, having been accused of an offence under the Penal Code, absconded, Absconding
and his projMjrty was on the 7th of August, 1878, attached by the Magistrate tMbjne^t""by
under section 172 of the Code of Criminal Procedure, 1872. While the pro- Magistrate-
perty was so under attachment, it was attached by B in execution of money- Jj*0"^^1 f*J
decree against .1, and sold on the 15th of January, 1879, B being the pur- ejj^ft \ 0 n of
chaser. On the 21st of April, 1880, the Magistrate sold the property to C. It decre e-S a \ e
did not appear whether the time fixe 1 by the Magistrate's proclamation for A's by Magistrate,
appearance had expire 1 at the date of the sale to B Held, in a suit for pos
session by B against C, that the title obtained by C under the Magistrate's sale
was superior to the title (if any) obtained by B at the sale in execution of the
money-decree. Semhle, that after the date of the attachment by the Magistrate
under section 172 of the Code of Criminal Procedure, 1872, and during
its continuance, no title could be conferred by an attachment and sale subse
quently made in execution of a money-decree Golam Abed v. Tooheeram
Bera, I. L. B , 9 Cal., 861 (1883)
89> If within two years from the date of the attachment, any Restoration of
person whose property is or has been at the disposal of Govern- »£achedPr0Per"
tnent, under sub-section 7) of secti m 88, appears voluntarily or
is apprehended and brought before the Court by whose order the
property was attached, or the Court to which such Court is subordi
nate, and proves to the satisfaction of such Court that he did not
abscond orcmceal himself for the purpose of avoiding execution
of the warrant, and thit he had not such notice of the proclama
tioti as to enable him to attend within the time specified therein,
Mich prop 'rtv, or, if tin; same has been sold, the nett proceeds of
the sale, or, if part only thereof has been sold, the nett proceeds
of the sale and the residue of the property, shall, after satisfying
thereout all costs incurred in consequence of the attachment, be
delivered to him
64 General Provisions. [Chap. VI.
Proclamation An accused person for whose arrest a warrant had been issued having
sconSfnÂt-b" absconded, a proclamation was issued and affixed to the Court-house on the 6th
tacliment of hitof November, requiring him to appear on the 11th of December, 1893, and his
r°ffitf" property was attached. The proclamation was not published at the village
publication 'of where the accused resided until the 15th of November. The accused surren-
proclamation. dered on the 25th of June, 1894, and applied for restoration of the property
under Criminal Procedure Code, 1882, section 89, and an order was made by
which the restoration of his property was refused . The accused preferred a
petition to the High Court for the revision of that order. Held, that there was
no legal proclamation under Criminal Procedure Code (1882), section 87, and
that the order should be set aside and the attachment declared void. Queen-
Empress v. Subbarayar, I. L. B., 19 Mad., 3 (1895).
accused— m °' ^ having been accused of an offence under the Penal Code, absconded,
tacliment by and n'8 property was on the 7th of August, 1878, attached by the Magistrate
Mairint rate — under section 172 of the Code of Criminal Procedure. While the property was
decree^Sale by 80 unt'er attachment, it was attached by B in execution of a money-decree
Magistrate. against A, and sold on the 15th January, 1879, B being the purchaser. On the
21st of April, 1880, the Magistrate sold the property to C. It did not appear
whether the time fixed by the Magistrate's proclamation for A's appearance
had expired at the date of the sale to B. Held, in a suit for possession by B
against C, that the title obtained by C under the Magistrate's sale was supe
rior to the title (if any) obtained by B at the sale in execution of the money-
decree. Golam Abed v. Toohee Ram Beta, I. L. It., 9 Cal., 861 (1883).
Forfeiture'of~ Before the passing of an order declaring the property of an accused per-
propcrty. son who cannot be found to be at the disposal of the Government, there liiust
be a proclamation under section 183 of the Code of Criminal Procedure, 1861,
specifying a time within which such person is required to appear. But, before
a Magistrate can issue such a proclamation, lie must be satisfied that such
person has absconded or is concealing himself for the purpose of avoiding the
service of the warrant. Shewdyal Sing v. Griban Sing, 6 \V. R., 73 (1866).
Forfeiture of Forfeiture of property of an absconding offender, who appears within two
abw-omiiii"
fender lng0"of- vcar8 ^r0,n at'ie
until after attachment
regular enquiryof into
his property,
the causesshould
of thenot be carried
offender's into effect
absence. In re
Bishonath Sircar, 3 W. R., 63 (1865).
D.— Other Rules regarding Processes-
issue of war- ^ Court may, in any case in which it is empowered by
""in'" addition ^8 *° 'ssue a summons *or tho appearance of any person
to, summons, other than a juror or assessor, issue, after recording its reasons in
writing, a warrant for his arrest —
(a) if, either before the issue of such summons, or after the
issue of the same but before the time fixed for his appearance, the
Court sees reason to believe that he has absonded or will not
obey the summons ; or
(b) if at such time he fails to appear and the summons is
proved to have been duly served in time to admit of his appear
ing in accordance therewith and no reasonable excuse is offered for
such failure.
For form of icarrant, see schedule V, JS"o. 7.
Abscond, mean- " The term 1 abscond ' is not to be understood as implying necessarily
ing of the term, that a person leaves the place in which he is. Its etymological and its ordi
nary sense are to hide oneself; and it matters not whether a person departs
from a place or rcmaius in it, if he conceals himself ; nor does the term apply
only to the commencement of the concealment. If a person, having concealed
himself before process issues, continues to do so after it has issued, he ab
sconds." Madaputi Srinivata Ayyangar and 4 othtr petitioners v. The Queen,
I. L. K., 4 Mad., 393 (1881).
A Magistrate is not bound to enforce the attendance of witnesses by Attendance of
warrant, except upon proof of due service of summons. In re A biur Rah- T
man, 7 W. B., 37 (1867). Also 14 VV. R., 20 (1870). enfoT?&
91. When any person for whose appearauca or arrest the bSlSUSumSt
officer presiding in any Court is empowered to issue a summons »nce-
or warrant is present in such Court, such officer may require such
person to execute a bond, with or without suraties, for his appear
ance in such Court.
92. When any person who is bound by any bond taken un- o"uoVd to^p-
der this Code to appear before a Court, does not so appear, the pcaranco.
officer presiding in such Court may issue a warrant directing that
such person b3 arrested and produced before him.
93. The provisions contained in this chapter relating to a gg^JL^,
summons and warrant, and their issue, service and execution, shall, nenerai)y»ppiic-
c as may ii, be, apply to every summons anai every warrant
„ _i oti* able tosummon-
»» lar scand warrants
arrest issued under this Code. of arret.
CHAPTER VII.
OF PROCESSES TO COMPEL THE PRODUCTION OF DOCUMENTS
AND OTHER MOVEABLE PROPERTY, AND FOR THE
DISCOVERY OF PERSONS WRONGFULLY CONFINED.
A. —Summons to produce.
94. (/) Whenaver any Court, or, in any place beyond summons to
the limits of the towns of Calcutta and Bombay, any officer in ££jtu<*
charge of a police-station, considers that the production of any n<'»*-
document or other thing is necessary or desirable for the purposes
of any investigation, inquiry, trial or other proceeding under this
Code by or before such Court or officer, such Court may issue a
summons, or such officer a written order, to the person in whose
possesion or power such document or thing is believed to be,
requiring him to attend and produce it, or to produce it, at the
time and place stated in the summons or order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to have com
plied with the requisition, if he causes such document or thing to
be produced instead of attending personally to produce the
same.
6
66 General Provisions. [Chap. VII.
(5) Nothing in this section shall he deemed to affect the

Indian Evidence Act, 1872, sections 123 and 124, or to apply to
a letter, postcard, telegram or other document, or any parcel or
thing in the custody of the Postal or Telegraph authorities.
pSSiiraTdoci*- C75 (P- Wnoevcr. being legally bound to produce or deliver

inentto* pub- up any document to any public servant, as such, intentionally omits to
SjJSJ*!^ produce or deliver up the same, shall be punished with simple imprison-
ducesu10 dociT ment ôr 8 tenn wnich may extend to one month, or with fine which may
ment.] °CU' extend to five hundred rupees, or with both ; or, if the document
is to be produced or delivered up to a Court of Justice, with simple
imprisonment for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
Illustration.
A, being legally bound to produce a document before"a Zillali Court
intentionally omits to produce the same. A has committed the offence
defined in this section.]
rjMdenogM to [123 (Evidence Act). No one shall be permitted to give any
airso * e-J evidence derived from nnpublishcd. official records relating to any affairs
of State, except with the permission of the officer at the head of the
Department concerned, who shall give or withhold such permission as
he thinks fit.]
[official com- [124 (Evidence Act). No public officer shall be compelled to dis-
mumcations.] communications made to him in official confidence, when he
considers that the public interests would suffer by the disclosure.]
[Cross-examina- [139 (Evidence Act). A person summoned to produce a

CTMed^to"01^)" document does not become a witness by the mere fact that he produces
ment.]* doc"" lt' a,ld cannot be cross-examined unless and until lie is called as a
witness.]
[Search ■War [8 (Act XI of 1890). (1) If a Magistrate of the first-class,
rant J Subdivisional Magistrate, Commissioner of Police, or District Super
intendent of Police, upon information in writing, and after such inquiry
as he thinks necessary, has reason to believe that an offence against
section 4, section" 5, or section 6, is being or is about to be or has been
committed in any place, he may either himself enter and search, or, by
his warrant, authorize any police-officer above the rank of a constable
to enter and search the place.
(2) The provisions of the Code of Criminal Procedure, 1882,
relating to searches under that Code, shall, so far as their provisions
can be made applicable, apply to a search under sub-section il.)]
* Section 4.—Penalty for practising phulka. Se.tion 5.—Penally for killing

animals with unnecessary cruelty anywhere. Section 6.—Penalty for employing
anywhere animals unfit for labour.
[7 (Act IV of 1884). (1) The Governor-General in Council, fPowcr to make

or the Local Government with the previous sanction of the Governor- £Jwer™o\fl kis"*
General in Council, may make rules consistent with this Act authorising pection, search,
• . c i- cc seizure, dctcn-
any officer, either by name or in virtue ot his office — tion, and re
moval.]
(a) to enter, inspect, and examine any place, carriage, 'or vessel in
which an explosive is being manufactured, possessed, used, sold,
transported, or imported under a license granted under this Act,
or in which he has reason to believe that an explosive has been
or is being manufactured, possessed, used, sold transported, or
imported in contravention of this Act or of the rules made under
this Act ;
(5) to search for explosives therein;
(c) to take samples of any explosive found therein on payment of
the value thereof; and
('/) to seize, detain, remove, and, if necessary, destroy any explosive
found therein.
(2) The provisions of the Code of Criminal Procedure relating to
searches under that Code shall, so far as the same are applicable,
apply to searches by officers authorized by rules under this section.]
A complaint having been preferred against an accused for 'criminal Summons to
breach of trust with reference (among other items) to a sum of 4is. 1,77,131- SJ^'or thin*
1-2, which sum was, in an enquiry held by the Chief Presidency Magistrate,
proved to have been paid to the accused in seventeen notes of rupees ten thou
sand each (the numbers of which were identified), and the remainder in small
notes and cash ; the accused in cross-examination, for his own purposes, proved
that fifteen of these notes were still in his possession ; whereupon an applica
tion was made, under section !*4 of the Code, 1882, for a summons on the ac
cused, directing the production of these notes. This application was refused.
Subsequently the accused, through a third person, cashed five of these notes,
whereupon a second application was made, under section 94, by the prosecu
tion for the production of the notes or their proceeds as against accused and
such third person. The Magistrate granted summonses on the accused and on
such thin! person for the production of ten notes, but declined to grant a sum
mons for such third person for the proceeds of the five notes cashed. The
accused produced five of these notes which were in his possession or power ;
the third person, however, stating that he had in his power five of the notes
mentioned in the summons, claimed a lien on the same, and the Magistrate
thereupon refused to make any order on him. The Magistrate (a rule having
been obtained against him, calling on him to show cause why his order should
not be set aside, and why the notes or the proceeds thereof in the hands of the
third person should not be produced) stated in his explanatory letter that he
entertained doubts as to his power to compel such third person to produce the
five notes, inasmuch as a lien had been claimed on them, and that he was of
opinion that the proceeds of the notes cashed, not being specific objects, did
not come within the purview of section (J4. Held, that the Magistrate's order
must be set aside. II. II. the Nizam of Hyderabad v. A. M. Jacob, I. L R
19 Col., 52 (1891).
95. (/) If any document, parcel or thing in such custody is, piwnturc n«
in the opinion of any District Magistrate, Chief Presidency Magis- '"^nuiis!''1
trate, High Court or Court of Session, wanted for the purpose of
any investigation, inquiry, trial or other proceeding under this

Code, such Magistrate or Court may require the Postal or Tele
graph authorities, as the case may be, to deliver such document,
parcel or thing to such person as such Magistrate or Court
directs.
(2) If any such document, parcel or thing is. in the opinion of
any other Magistrate, or of any Commissioner of Police or District
Superintendent of Police, wanted for any such purpose he mav
require the Postal or Telegraph Department, as the case may be,
to cause search to be made for and to detain such document ,
parcel or thing pending the orders of any such District Magis
trate, Chief Presidency Magistrate or Court.
B.— Searsh- Warrants.

SSEuit^msv (-0 Where any Court has reason to believe that a person
be issued. ' to whom a summons or order under section 9 i or a requisition under
section 95, sub-section (1), has been or might be addressed, will
not or would not produce the document or thing as required by such
summons or requisition,
or where such document or thing is not known tj the Court to
be in the possession of any person,
or where the Court considers that the purposes of any inquiry,
trial or other proceeding under this Code will be served by a gene
ral search or inspection,
it may issue a search-warrant : and the person to whom such
warrant is directed, may search or inspect in accordance therewith
and the provisions hereinafter contained.
(2) Nothing herein contained shall authorise any Magistrate
other than a District Magistnte or Chief Presidency Magistrate to
grant a warrant to search for a document, parcel or other thing in
the custody of the Postal or Telegraph authorities.
For form oj warrant, see schedule V. Ifo. 8.
Se»rcli-w»r- The accused was charged with the offence of criminal misappropriation
BOTrcTi-wilrrant of treasure belonging to a temple of which lie was alleged to be the trusty.
m»y inme. From the complaint it appeared that some of the treasure belonging lo the
temple had been buried under a flagstaff in the temple, and the Magistrate was
of opinion that the nature of the property so buried had an i nportant and
material bearing on the case for the prosecution : Held, the Magistrate had
jurisdiction to issue a warrant to search for and produce such property upon
information which he considered credible, since there was a complaint before
him duly affirmed as prescribed by the Criminal Procedure Code, 1882, and
that it was not incumbent on him to wait until the evidence for the prospcu-
tiou should have been recorded in the presence of the accused. Quren-En-
pres* v. Mahanl ofTirupati, I. L R., 13 Mad.. 18 (18811).
A and T, the latter of whom was the book-keeper in the firm of J M Inspection of
and Co., were charged, on the complaint of that firm, with cheating by having crim™„J1J|sej."
dishonestly induced them to deliver A certain sums of money between 1882 Discovery—
and 1887, and with having abetted each other in the commission of the said Power of Court
offence. The offence charged was carried out by T omitting to make entries [°0°'!!!s^cSh)ec
in the account books of sums ilue by A to the firm, and by making false en- warrant, form
tries therein of payments by A . Whilst the charge was pending the Presidency a'"! validity of .
Magistrate, before whom the charge had been made, granted a search-warrant
in the following terms :—"To Inspector M. Whereas A and another have been
charged before rne with the commission or suspected commission of the offence
of cheating, and it has been made to appear to roe that the production of
khatta books for the year 1882 to 1887 is essential to the enquiry now being
made, or about to be made, into the said offence or suspected offence, this is
to authorize and require you to search for the said property in the house of A,
So. 13, Pollock Street, and if found to produce the same forthwith before this
Court." In execution of this warrant certain books and papers found in the
house of A were seized and taken possession of by the Police, and of those
books and papers the Magistrate, on the application of the prosecution, made
an order for inspection. On a rule granted by the High Court to show cause
why the order for inspection should not be set aside, it was contended that
the search-warrant had been granted without proper judicial inquiry and upon
insufficient materials ; that it was bad on the face of it, as it did not " specify
clearly,'' as directed in Form VIII, Schedule V. of the Criminal Procedure
Code, 1882, whose khatta books were to be produced ; and that there was no
thing in the criminal law to enable a Court to make an order for inspection of
documents by the prosecution in a criminal case. Held, per NoRRlS, J., that,
assuming the contention as to the search-warrant arose on the rule as granted,
the warrant must bo looked at as a whole, and so looked at it sufficiently clear
ly showed that it was the khatta books of .1 which were referred to as being
essential to the enquiry and the objects of the directed search ; nor there was
anything to show that the warrant was issued otherwise than regularly and in
due course. Per Noituiw, J.—Though the Courts in England have constantly
refused to compel discovery in criminal cases, on the ground that no man
should be compelled to produce evidence to eliminate himself, the Legislature
in this country has authorized the production, and under certain circum
stances the compulsory production, of an accused person's documents in Court.
When once an accused person's documents are in the possession of the Court
by virtue of the due execution of a search-warrant issued under the provisions
of section 96 of the Code, there is no distinction between such documents and
those of any description found upon his person at the time of his arrest or on
his premises at the time of, or subsequent to, bis arrest, and it was never
doubted that the latter may be used in evidence against him. If, as laid down
in the case of Dillon v. O'Brien, the right to seize and detain property of any
description in the possession of a person lawfully arrested for treason, felony,
or misdemeanor, rests " upon the interest which the State has in a person justly
or reasonably believed to be guilty of a crime being brought to justice, and in
a prosecution once commenced being determined in due course of law, " a right
to inspect such property must exist, as well as a right to seize and detain it, and
the proper persons to inspect it are those conducting the prosecution. It would,
moreover, be unreasonable that the police or those conducting the prosecution
should not have an opportunity of inspecting and examining documents, &c,
found on a prisoner when arrested, or on his premises at the time of, or subse
quent to, his arrest, before tendering them in evidence. Per GrHOSE, J.—The
contention as to the validity of the search-warrant did not arise on the rule
as granted, but, gembly, that the search-warrant was bad in law, no summons
under section !)4 of the Criminal Procedure Code having been, in the first in
stance, issued for the production of the documents, and there being no evidence
to show that they would not be produced on summons only; that although the
warrant was not specific, still, inasmuch as no objection was raised to the form
of the warrant before the Magistrate, and the accused bad not been prejudiced
70 General Frovisions, [Chap, VII.
by reason of the specification of the documents being somewhat indistinct,

and it was clear what was really meant, the objection as to the form of the
warrant should be disallowed. Per Ghose, J.—There is no doubt that by the
criminal law of this country, as laid down in the Criminal Procedure Codes
since 1861, an accused person may be compelled to furnish evidence, the pro
duction of which might have the effect of criminating him. The Magistrate
has to determine, at the time when he makes an order under section 04 of the
Code, or issues a search-warrant under section 96, whether the documents are
necessary for the enquiry; but when they are brought into Court the inspection
should not rest with the Magistrate who does not prosecute and 1ms no interest
one way or the other in the result of the prosecution It is reasonable that
those who conduct the prosecution should have such inspection, for the pro
duction of such documents is for the purpose of using them in evidence, and
this could not be done unless the prosecution had an opportunity of inspecting
them. In the case of a search or seizure by the police under Chapter XIV of
the Criminal Procedure Code, the prosecution would necessarily have an oppor
tunity of looking at the documents and articles seized, and there is no reason
why he should not have the same opportunity or privilege where, under the
order of the Court, any particular document or other thing is seized under a
search-warrant, and brought up to the Court Bearing in mind the purpose for
which any document or thing is seized and brought before the Court, it seems
that the Legislature, while providing for the seizure and production in the
Court of documents, &c, intended by implication that the prosecution should,
under the order of the Court, have the power to inspect them, and determine
whether they should go in as evidence. Held, per curiam, for the reasons above
given—that the Magistrate had power to allow the inspection, but such ins
pection must be limited to the books named in the search-warrant. In re
Ahmed Mahomed and Mahomed Jackariuh & Co., v. Ahmed Mahomed,
I. L. E., 15 Cal., 10!> (1887).
Search without An officer, subordinate to an officer in charge of a police-station, who was
warrant. deputed by the latter to make an inquiry under section 135 of the Code of Cri
minal Procedure, attempted without a search-warrant to enter a house in
search of property alleged to have been stolen, and was obstructed and resisted.
Held (applying section 99 of the Penal Code), that even though the police-
officer was not strictly justified in searching the house without a warrant, the
person obstructing and resisting could not set up the illegality of the officer's
proceeding as a justification of his obstruction, as it was not shown that that
officer was acting otherwise than in good faith and without malice. Reg. v.
Vyankatrao Shrinivas, 7 Bom. II. C, 50 (1870).
Search-warrant. It is essential to the legality of a search-warrant, under section 114 of
the Code of Criminal Procedure, 1861, that the production of some gpecifiedand
particular thing is desired ; that the Magistrate alone shall determine that such
production is necessary ; and that a specified house or place only is to be search
ed. The warrant must, under section 115 of that Code, be directed to some
other person, only when a police-officer is not forthcoming. Queen v. Syud
Hossain Ali Khan Choicdry, 8 W. R., 74 (1867).
Powertorestrict 97. The Court may, if it thinks fit, specify in the warrant
»arniM . ^ particular place or part thereof to which only the search or
inspection shall extend ; and the person charged with the execu
tion of such warrant shall then search or inspect only the place or
part so specified.
For form of warrant, see schedule V, No. 8.
houMh»us ted O ^ 11 J^8*™5* Magistrate, Subdivisional Magistrate,
to contain stolen Presidency Magistrate or Magistrate of the first-class, upon in-
SwuSJiifcete?1 formation and after such inquiry as he thinks necessary, has reason
Ss. 97-98.] General Frovisions. 71
to believe that any place is used for the deposit or sale of stolea
property,
or for the deposit or sale or manufacture of forged documents,
false seals or counterfeit stamps or coin, or instruments or mate
rials for counterfeiting coin or stamps, or for forging,
or that any forged documents, false seals or counterfeit

stamps or coin, or instruments or materials used for counterfeiting
coin or st.imps or for forging, aro kept or deposited in auy place,
he may by his warrant authorise any police-officer above the

rank of a constable—
(a) to enter, with such assistance as may be required, such

place, and
(4) to search the same in manner specified in the warrant,
and
(c) to take possession of any property, documents, seals,
stamps or coins therein found which he reasonably
suspects to be stolen, unlawfully obtained, forged, false
or counterfeit, and also of any such instruments and
materials as aforesaid, and
(</) to convey such property, documents, seals, stamps, coins,
instruments or materials before a Magistrate, or to guard
the same on the spot until the offender is taken before a
Magistrate, or otherwise to dispose thereof in some place
of safety, and
[e) to take into custody and carry before a Magistrate every
person found in such place who appears to have been
privy to the deposit, sale or manufacture or keeping of
any such proparty, documents, seals, stamps, coins, ins
truments or materials, knowing or having reasonable
cause to suspect the said property to have been stolen or
otherwise unlawfully obtained, or the said documents,
seals, stamps, coins, instruments or materials to have
been forged, falsified or counterfeited, or the said instru
ments or materials to have been or to be intended to be
used for counterfeiting coin or stamps or for forging.
(2) The provisions of this section with respect to —

(a) counterfeit coin,
(6) coin suspected to be counterfeit, and
(c) instruments or materials for counterfeiting coin,
shall, so far as they can be made applicable, apply, respec

tively, to—
{a) pieces of metal made in contravention of the Metal
Tokens Act, * 1889, or brought into British India in
contravention of any notification for the time being in
force under section 19 of the Sea Customs Act, f 1878,
(b) pieces of metal suspected to have been so made or to
have been so brought into British India, or to be in
tended to be issued in contravention of the former of
those Acts, and
(c) instruments or materials for making pieces of metal in
contravention of that Act.
■ - For form of warrant, see schedule V, No. 9.
Section 28, Indian Penal Code, defines " counterfeit."
Section 230, Indian Penal Code, defines " coin."
Section 410, Indian Penal Code, defines " stolen property."
Section 463, Indian Penal Code, defines " forgery."
Section 464, Indian Penal Code, defines " making a false document."
Section 470, Indian Penal Code, defines " forged document."
Di»p omi of 99, When, in the execution of a search-warrant at any place
swrch '°b£yond beyond the local limits of the jurisdiction of the Court which
jurisdiction. jSSUed the same, any of the things for which search is made are
found, such things, together with the list of the same prepared un
der the provisions hereinafter contained, shall be immediately
taken before the Court issuing the warrant, unless such place is
nearer to the Magistrate having jurisdiction therein than to such
Court, in which case the list and things shall be immediately taken
before such Magistrate ; and, unless there be good cause to the
contrary, such Magistrate shall make an order authorising them to
be taken to such Court.
C.—Discoceri/ of persons wrongfully confined.

search for 100. If any Presidency Magistrate, Magistrate of the first-
^""oiinwo'!* class or Subdivisional Magistrate has reason to believe that any
person is confined under such circumstances that the confinement
amounts to an offence, he may issue a search-warrant, and the per
son to whom such warrant is directed may search for the person
no confined ; and such search shall be made in accordance therewith,
and the person, if found, shall be immediately taken before a Ma
gistrate, who shall make such order as in the circumstances of the
case seems proper.
[Reason to [26 (P. C.) A person is said to have "reason to believe" a
believe.] thing, if he had sufficient cause to believe that thing, but not otherwise.]
* Act No. 1 of 1889.. t Act No. VIII of 1878.

[339 (P. C.) Whoever voluntarily obstructs any person so as to [Wrongful

prevent that person from proceeding in any direction in which that person reatramt J
lias a right to proceed, is said wrongfully to restrain that person.
Exception.—The obstruction of a private way over land or water,
which a person in good faith believes himself to have a lawful right to
obstruct, is not an offence within the meaning of this section.
Illustration.
A obstructs a path along which Z has a right to pass, A not bo-
lieving in good faith that he has a right to stop the path. Z is thereby
prevented from passing. A wrongfully restrains Z.
' [340 (P. C.) Whoever wrongfully restrains any person in such a [wrongf„i
manner as to prevent that person from proceeding beyond certain cir- confinement.1
cumscribing limits is said " wrongfully to confine" that person.
Illustration 1.
(a.) A causes Z to go within a walled space, and locks Z in. Z
is thus prevented from proceeding in any direction beyond the circum
scribing line of wall. A wrongfully confines Z.
(b.) A places men with fire-arms at the outlets of a building, and
tells Z that they will fire at Z if Z attempts to leave the builing. A
wrongfully confines Z.]
A Hindu girl, under the age of 1-1 years, wont of her own accord to a u,,]^!,,! je.
Mission House where she was received and allowed to remain. The mother tention (or an
and husband of the girl thereupon applied to t lie Magistrate, who took pro- unlawful !«>'"
ceedings under section 551 of the Criminal Procedure Code, 1882. The Lady JYinfan"8 y
Superintendent of the Mission-house denied that the girl was legally married,
and alleged that she was practically being brought up with the connivanco of
the mother to a life of prostitution. The Magistrate, after recording evidence,
found that the girl was legally married ; that the other allegation was not
established ; and that, although she went to and remained in the Mission-house
of her own free will,- there was, under the circumstances, an unlawful detention
for an unlawful purpose. He further found that there was no fact established
which would disentitle the husband or the mother to the custody of the girl,
and passed an order under the section directing the girl to be restored to her
mother. Held, upon the facts as found by the Magistrate, as it was immate
rial whether the girl did or did not consent to remain at the Mission-house,
there was an unlawful detention within the meaning of these words as used
in the section, as the girl was kept against the will of those who were
lawfully entitled to have charge of her. Held, also, that section 551, upplying
only as it does to women and female children, must not be construed so as to
make it include purposes which, although not unlawful iu themselves, might
only become so when entertained towards a child in opposition to the wishes
of its guardian, but that the purpose, whether entertained towards a woman
or a female child, must be in itself unlawful. Held, consequently, that, in the
circumstances of the case, there was no detention for an unlawful purpose, and
that the Magistrate had no power to make the order. Held, further, that al
though the Magistrate had no power under the section to make the order he
did, it did not follow that the Court should direct the girl to be restored to the
custody of the Lady Superintendent, even if it had the power to do so, and that
having regard to the circumstances of the case, there was nothing to justify
such an order being passed. Abraham v. Mnhtabo, I. L. II., 16 Col., 487
(1889).
D, — General Provisions relating to Searches.

Direction, etc., 101., The provisions of sections 43,4 75, 77, 79, 82, 83 and
ruST*'*"*' 84 shall, so far as may be, apply to all s< search-warrants issued un
der section 96, section 98 or section 100.
Persona in 102. (7) Whenever any place liable to search or inspection
plScetoaUow under this chapter is closed, any person residing in, or being in
search, charge of, such place shall, on demand of tha officer or other per
son executing the warrant, and on production of the warrant, al
low him free ingress thereto, and afford all reasonable facilities for
a searcli therein.
(2) If ingress into such place cannot be so obtained, the
officer or other person executing the warrant may proceed in man
ner provided by section 48.
(3) Where any person in or about such place is reasonably
suspected of concealing about his person any article for which
search should be made, such person may be searched. If such
person is a woman, the directions of section 52 shall be observed.
Search to bo 103. (7) Before making a search under this chapter the
senoo Jta pre- officer or other person about to make it shall call upon two or
nesies. more respectable inhabitants of the locality in which the place to be
searched is situate to attend and witness the search.
(2) The search shall be made in their presence, and a list of
all things seized in the course of such search and of the places in
which they are respectively found shall bo prepared by such officer
or other person and signed by such witnesses ; but no person wit
nessing a search under this section shall be required to attend the
Court as a witness of the search unless specially summoned by it.
Occupant of (<?) The occupant of the place searched, or some person in his
m2yuttcnd?lllHl behalf, shall, in every instance, be permitted to attend during the
search, and a copy of the list prepared under this section, signed
by the said witnesses, shall be delivered to such occupant or person
at his request.
(4) When any person is searched under section 102, sub-sec
tion (3), a list of all tilings taken possession of shall bo prepared,
and a copy thereof shall be delivered to such person at his
request.
K.— Miscellaneous.
rower to im- 104. Any Court may, if it thinks fit, impound any document
pound docu-
incut, etc., pro- or thing
0 rproduced before it under this Code.
duced.
Magistrate may 105. Any Magistrate may direct a search to be made in his
hUnreSnre1 '" Presence °* anv pkee for the se.'.rch of which he is competent to
issue a search warrant.
Ss. 1 01 -i 06.] Prevention of Ofences. 75
PART IV.
PREVENTION OF OFFENCES.
CHAPTER VIII.
Of Security for Keeping the Peace and for Good Behaviour.
A.—Security for Keeping the Peace on Conoiotion.
106. (/) Whenever any person accused of rioting, assault or Security for
other offence involving a breach of the peace, or of abetting the peaoeP on *con-
same, or of assembling armed men or taking other unlawful mea- vlct1011-
sures with the evident intention of committing the same, or any
person accused of committing criminal intimidation, is convicted
of such offence before a High Court, a Court of Session or the
Court of a Presidency Magistrate, a District Magistrate, a Sub-
divisional Magistrate or a Magistrate of the first class,
and such Court is of opinion that it is necessary to require
such person to execute a bond for keeping the peace,
such Court may, at the time of passing sentence on such per
son, order him to execute a bond for a sum proportionate to his
means, with or without sureties, for keeping the peace during such
period, not exceeding three years, as it thinks fit to fix.
(2) If the conviction is set aside on appeal or otherwise, the
bond so executed shall become void.
(3) An ( rder under this section may also be made by an Ap
pellate Court or by the High Court when exercising its powers of
revision.
For form of bond to keep the peace, see schedule V, No. 10.
An Honorary Magistrate exercising third-class powers tried an accused Eeco;.tnizanceto
on a charge of criminal trespass and convicted and sentenced him to pay a fine keep the peace -
of Rs. 10, or in default to suffer seven days' rigorous imprisonment. He fur- ^fo^votl'u \l i
ther submitted the case to the District Magistrate with a recommendation that Kistr.iti- trying
the accused should be bound down to keep the peace under section 106 of the ? ca9e w|ic" n«
Criminal Procedure Code, 1882, and the District Magistrate ordered the accused toÊimi
to furnish security. Held, that the order of the District Magistrate was illegal the accused,
and must bo set aside. Before an order under section 106 can be properly
passed, the conviction must be by a Magistrate of the class mentioned in the
section, and not by the third-class Magistrate, and the order must be passed
by the Magistrate who convicts and passes the sentence. Mahrrmdi Sheikh
v. Aji Sheikh, I. L. B., 21 Cal., 622 (1894).
The Magistrate of a district when acting as an Appellate Court is not ^jj",^' t|{°r
competent to make an order under section 106 of the Criminal Procedure Code, peace—Mw«-
1882, requiring the appellant to furnish security for keeping the peace. In re \T^°V'^,^.\
Ash V. the Queen-Empress, I. L. H., 10 Cal, 779 (1889). Court.
76 Prevention of Offences. [Chap. VIII.
Security to A witness for the defence in a cuse of rioting having admitted being
from' witness100 present at or near the scene of the riot and denied that the accused took any
part in it, the Magistrate, after finding the accused guilty and without further
proceedings, called upon both the accused and his witness to enter into bonds
to keep the peace for one year. Held, that the procedure was illegal so far as
the witness was concerned. The Queen v. Kadar Khun, I. L. R., 5 Mad.,
380 (1882).
Security for The Magistrate of a district, when exercising the powers of an Appellate
keepmg^the^ Court, is competent to make an order under section 489 of the Criminal Pro-
ISnifstnite n" cedure Code, 1872, requiring the appellant to furnish security for keeping the
Appellate Court, peace. Empress of India v. Kumta Prasad, I. L. R., 4 AIL, 212 (1882).
Criminal intimi- The words in section 489 of the Criminal Procedure Code, 1872, "taking
dation—Security other unlawful measures with evident intention of committing a breach of
peace01""* ,ht tn6 peace," do not include the offence of intimidation by threatening to bring
false charges. Empress of India v. Rayhitbar, I. L. R., 2 All., 351 (1879)
Security to k-ep A Magistrate is not competent to require persons to give security to keep
i he. peace- Kvi- tne peace until he has adjudicated, on evidence taken in their preseuce, that
recorded they have by their conduct rendered this necessary. In re Umda Khanum, 3
Cal. L. R., 72 (1878).
Disputed pos- The holding of an inquiry, under Chapter XI of the Code of Criminal Pro-
peace. 0P|' * district 1872,
ritTok ^T'th ce(ûrei or of isa adivision
matter entirely withinand
of a district, thethe
discretion of the
High Court hasMagistrate of the
no authority to
require him to proceed under that chapter. The taking of security for keep
ing the peace is also a matter within the discretion of the Magistrate, provided
that he lias materials upon which to proceed. Jn re Promnno Roy, 23 W. R.,
58 (1875).
Security for Wheri certain persons were bound over to keep the peace and were subse-
koeplfui the quently convicted of voluntarily causing grievous hurt , and at the time of convic-
tnrTof reewiii- ti°n tlie Magistrate made an order escheating their recognizances, as part of
/.mice. his judgment in the case, without in any way fulfilling the provisions of sec
tion 502 of the Code of Criminal Procedure, 1872, and the convictions were
quashed by the Court of Session, the High Court cancelled the order of for
feiture. Queen v. Ghisa, N.-W. P., H. C, 1875, 375.
Broach of the ^n a case m which the accused were charged with unlawful assembly
iwace—Security, and trespass, the Magistrate acquitted the accused, but eventually ordered
the parties to execute bonds and furnish security, refusing to take further
evidence, and relying on the evidence which had been given before him in
the original case in the presence of the accused. Held, that the proceedings
were irregular ; the order w as accordingly set aside. 22 W. ft., 9 (1874).
Recognisance - ô or(Jer requiring personal recognizance to keep the peace can be passed
Breach of ihe under Act X. of 1872, section 489, unless the accused has been convicted
peace. of rioting or any other offence. Sahebdi v. Kurass, 21 W. R., 37 (1874).
On conviction for criminal trespass under section 447, Penal Code,
Criminal tres- of tjie
pasta -Breach , J0jnt. Magistrate
e , , , added to the . sentence. of, imprisonment
r,, anmo-
order that
i lie jieace-llo- the prisoners should give recognizances to keep the peace, ihe Sessions
cognizance. Judge recommended that the order as to recognizances should be quashed,
as criminal trespass was not one of the offences detailed in section 489 for
which recognizance could be taken. The High Court declined to act on this
recommendation, holding that there was nothing illegal in the Joint Magis
trate's order, the conduct of the accused clearly pointing to an intention to
commit a breach of the peace. The Queen v. Jhapoo, 20 W. 1}., 37 (1873).
Pâce^SecurUy? To justify an order under section 491 of the Code of Criminal Proce
dure, 1872, calling on a person to give security to keep the peace, there
S. 107.] Prevention of Offences. 77
must be n reasonable probability of a breach of the pence being committed,
and not merely a bare possibility of n breach of the peace. The Queen v.
Abdool Huq, 20 W. R., 57 (1873)
An order calling for recognizances under section 280 or for security RocOKiiiunce -
under section 281, Code of Criminal Procedure. 1861, must be passed at the Procw,nl*-
time of deciding the original case. If no such order is then made, subse
quent proceedings must be taken under section 282 and the parties summoned
to show cause. In re Gobind Soobood/tee, 15 \Y. 1!.. 56 (1871).
Although it is competent to a Magistrate, upon conviction and sentence Om i»»ioii to
for assault, to order the accused to enter intoan engagement to keep the peace, ^nce ' roco<t"1'
yet having omitted to do so, he can afterwards only institute proceedings
under section 281 of the Criminal Procedure Code, 1861, upon receiving
some further credible information (other than that which he derived from
the previous trial), that the parties are likely to commit a breach of the
pence. The Queen v. PoireU, 3 N.-W. P., H. C. 96 (1871).
The order of the Magistrate directing the prisoner, on the expiration of I'eiml rwottni-
his sentence for tbc offence of criminal trespass, to execute personal recogni- th" pcmIs"
zances to keep the peace, was upheld as legal and necessary. Queen v.
Gemloo Khan, 7 W. H., 14 (1867).
B.—Security for Keeping the Peace in oilier coses and Security
for Good Behaviour,
107. (/) Whenever a Presidency Magistrate, District Magis Security tor
trate, Subdivisional Mag'strate or Magistrate of the first-class is pence in other
informed that any person is likely to commit a breach of the peace eases'
or disturb the public tranquillity, or to do any wrongful act that
may probably occasion a breach of the peace, or disturb the public
tranquillity, tbe Magistrate may, in manner hereinafter provided,
require such person to show cause why he should not be ordered
to execute a bond, with or without sureties, for keeping the peace
for such period not exceeding one year as the Magistrate thinks
fit to fix.
(2) Proceedings shall not be taken und^r this section unless
either the person informed against, or the place where the breach
of the peace or disturbance is apprehended, is within the local
limits of such Magistrate's jurisdiction, and no proceedings shall
be taken before any Magistrate, other than a Chief Presidency or
District Magistrate, unless both the person informed against and
the place where the breach of the peace or disturbance is appre
hended, are within the local limits of the Magistrate's jurisdiction.
(3) When any Magistrate not empowered to proceed under Procedure of
sub-fcction (/) has reason to believe that any person is likely to ™po«mJi "to
commit a breach of the peace or disturb the public tranquillity, or "cUon^/)*"1'
to do any wrongful act that may pr.»bably occasion a breach of
the peace or disturb the public tranquillity, and that such breach
of the peace or disturbance cannot hi prevented otherwise than by
detaining such person in custody, such Magistrate or Court may,
after recording his reasons, issue a warrant for his arrest (if he is
not already in custody or before the Court), and may send him be
fore a Magistrate empowered to deal with the case, together with a
copy of his reasons.
(4) A Magistrate before whom a person is sent under this sec
tion may in his discretion detain such person in custody until the
completion of the inquiry hereinafter prescribed.
for form of summons, see schedule V, tVo. 12.
Rccojrniz-inee lo In a case where an accused was bound over to keep the peace by the Deputy
keep the ]>oac' Magistrate of the distrtct in which the accused was temporarily residing at the
MiiiTstrntc.'01' °' ''me when the Magistrate received information and instituted proceedings
against him : Held, that, although the accused permanently or habitually resided
in another jurisdiction, he was sufficiently within the jurisdiction of the Magis
trate within the meaning of section 107 of the Code of Criminal Procedure, 1882.
Shama Charan Chakrararti v. Katu Mundal, I. L. R., 24Cal., 344(1897.)
Security lo keep Section 107 of the Criminal Procedure Code, 1882, does not empower
the poaoc-Pow- ft Magistrate to issue process under it to a person not residing within his juris-
trate of a dis- diction. In re Abdul Aziz, I. L. R., 14 All., 49 (1891).
tnet tocall upon
a person residing
in another dis
trict to furnish
Upon general principles, every person is entitled, in the absence of
B urdeTo f exceptional authority conferred by the law to the contrary effect, when
proof—Joint in- required by the judiciary either to forfeit his liberty or to have his liberty
fnc\?on^PPdeilit 1uan''ec'> to >ns'st that his case shall be tried separately from the cases of
with in one pro- other persons similarly circumstanced. Where an order lias been passed
coodinn—Nature under section 107 of the Criminal Procedure Code, 18b2, requiring more
of evidence "n™ persons than one to show cause why they should not severally furnish se-
cessary before curity for keeping the peace, the provisions of section 239 read with section
KuriTv0rilerf0r are aPP''ca'''e) subject to such modifications as the latter section indicates,
and to such procedure as the exigencies of each individual case may render
advisable in the interests of justice. A joint inquiry in the case of such
persons is therefore not, ipsofacto, illegal ; and even in cases where one and
the same proceeding taken by the Magistrate under sections 107, 112, 117
and 118 improperly deals with more persons than one, the matter must be
considered upon the individual merits of the particular case, and would at
most amount to an irregularity which, according to the particular circum
stances, might or might not be covered by the provisions of section 537.
An order passed by a Magistrate under sections 107 and 112 of the Code,
requiring any person to " show cause " why lie should not be ordered to
furnish security for keeping the peace, is not in the nature of a rule nisi
implying that the burden of proving innocence is upon such person. The
onus of proof lies upon the prosecution to establish circumstances justifying
the action of the Magistrate in calling upon persons to furnish security.
Where, according to the information received by the Magistrate, there were
two opposing parties inclined to commit a breach of the pence,—held, apply
ing by analogy the principles relating to the trial of members of opposing
factions engaged in a riot, that the Magistrate acted irregularly in taking
steps against both parties jointly, and in holding the inquiry in a single
proceeding. Such a procedure is not, ipsofacto null and void, but only where
the accused have been prejudiced by it. In proceedings instituted under
section 107 of the Code against more persons than one, it is essential for the
prosecution to establish what each individual implicated has done to furnish
a basis for the apprehension that he will commit a breach of the peace.
In holding such an inquiry it is improper to treat what is evidence against
Ss. 107.] Prevention of Ofences. 79
one of such persons as evidence against all, without discriminating between
the cases of the various persons implicated. Although in an inquiry under
section 117, the nature or quantum of evidence need not be so conclusive
as is necessary in trials for offences, the Magistrate should not proceed
purely upon an apprehension of a breach of the peace, but is bound to see
that substantial grounds for such an apprehension are established by proof
of facts against each person implicated which would lead to the conclusion
that an order for furnishing security is necessary. What the nature of the
facts should be depends upon the circumstances of each case ; but, where
the nature of the Magistrate's information requires it, overt acts must be
proved before an order under section 118 can be made, and such an order
cannot be passed against any person simply on the ground that another is
likely to commit a breach of the peace. (Jueen-Empress v. Abdul Kadir,
I. L. R., t» All., 452 (1886).
The provisions of section 107 of the Code of Criminal Procedure do not Recoiniznnco
empower a Magistrate to issue process on persons not residing within the {Jeiic^-Po'wcr
limits of his district. The proper course for a Magistrate to pursue, where he of a District
believes that certain persons who are resident beyond the limits of his district *Jj{l0"'n,'c ,0
are likely to commit a breach of the peace within his district, is to cause infor- residing /Ifrson
matiou of the fact to be given to the Magistrate within whose district such ""other district
persons reside, and to produce evidence in support of such view, in order that ]^cl"["y^
proceedings may be taken against them by a Court which has jurisdiction. In Procedure.
re Rajendro Chunder Roy Chowdhry, I. L. R., 11 Cab, 737 (1885).
A Magistrate has no jurisdiction to take proceedings under section 107 Jlocoiriiisnncc
of the Criminal Procedure Code, 1882, against a person not personally within t° keep the
his jurisdiction. Even assuming there was a jurisdiction, it was not a case EHstrict "nTwis-
where the Magistrate should have called upon the petitioner to appear person- t"1'" to cull 011
ally, he residing at a distance, there being no special circumstances making Kfôtllerd'iv
his personal attendance necessary, and the Magistrate having power under sec- trict (or rccu-
tion 116 to allow him to appear by a pleader. In re Dinonath Mulliek. Dino- rity-
nath Mulliek v. Girija I'rosonno Mulcerjee, I. L. R., 12 Cab, 133 (1885).
A Magistrate ordered sixty-nine persons to show cause why they should Security to keep
not give security to keep the peace, it having been reported to him by the bJ1^,,J^n ~Tnfor-
police and the tehsildar of the pargana in which such persons resided that motion—Joint
they were likely to commit a breach of the peace at a religious procession '"<l"'ry-
which was about to take place, and the holding of which was opposed to their
religious tenets. After an inquiry, as against all the accused jointly, the
Magistrate on the evidence of the tehsildar and a sub-inspector of police,
ordered that ten of the accused, who were said to be the " ringleaders," should
enter into b:jnds with sureties, and the rest should enter into their own recog
nizances to keep the peace for one year. Held, that the Magistrate's order
purporting to be prepared under section 112 of the Criminal Procedure Code,
1882, diil not adequately or properly dis dose the substance of the report or
information upon which he issued his summons : the parties were entitled to
something more than a mere assertion by the Magistrate that he had been in
formed that a breach of the paace was likely to occur, in order to enable them,
if they were in a position to do so, to bring cvi lence to rebut the truth of
such information—that the very loose statements of the tehsildar and the sub-
inspector as to the largo majority of the persons summoned, were quite in-
sullicicnt to justify the wholesale order for security passed by the Magistrate
—that as the religious procession would have been over in a fortnight, it was
a most excessive exercise of power to require all the parties to give security
for one year—and that the Magistrate should ha,re dealt with the cases of the
ten alleged " ring-leaders " tirst and should have required the tehsildar anil
sub-inspector to give much fuller statements seriatim, and particularly as to
each individual man ; and as to the remaining fifty nine, there should have
So Prevention of Offences. [Chap. VIII.
licen some clear and distinct proof affecting each of tlieni and warranting the
inference tlmt such person was likely to commit a breach of the peace, or to
do a wrongful act likely to occasion a broach of the peace. Queen-Empress v.
Nathu, I. L. B., 6 All., 214 (1884).
Arrest of per- order was issued to a poliee-olHeer directing him to arrest A' under
son required to section 55 of the Criminal Procedure Code, 1882, as a person of bad liveli-
coodMiavwur^- hood- K> with the assistance of three others, resisted apprehension and es-
Escape from caped. Held, that K was not charged with an " offence " within the mean-
SnVcHon _for m^ °^ *'lat 'orm aR ê^nei' m section 40 of the Penal Code, and that con-
such escape sequently no offence made punishable by section 224 or 225 of the Penal
illegal. Code had been committed in connection with his evasion of arrest. Queen-
Empress v. Kandhaia, I. L. B., 7 All., 67 (1884).
Power of the Held, by the Full Bench, that the term of section 107, Criminal Pro-
a'dfttricV'to call ceûre Code, 1882, do not empower a Magistrate to issue process to a person
on a person re- n0^ residing within the limits of his district. Held, by the Divisional Bench,
sidin* in an- that " information " of the kind mentioned in that section must be clear
furnlsh'seairity. an^ definite, directly affecting the person against whom process is issued, and
should disclose tangible facts and details, so that it may afford notice to
such person of what he is to come prepared to meet. In re Jai Prahishlal,
I. L. R., GAIL, 26 (1883).
Security for Conversations out of Court with persons, however respectable, are not
»rood behaviour-- legal
Information °. or proper
r. r material upon r«,/» which
» ., Magistrates
/-<••■ n should j adopt
n j proceedings
<ooo mi
showing that a under section 10 1 or section 110 of the Criminal Procedure Code, 1882. llie
breach of the information to be required by a Magistrate, before issuing an order under
Sent- Order""^ section 112, may to sonic extent be of a hearsay and general description ;
furnish security but when the party to whom the order is directed appears in Court, inolicdi-
ourWfor '""tllrcc enc0 tneret;o, the inquiry must be conducted on the lines laid down in
yoara—Arrest of section 117. It is not because a man has a bad character, that he is therefore
accused—Inqui- liable to be be called upon for sureties of the peace or for good behaviour,
mfonnation— ° There must be satisfactory evidence in the one case that he has done some-
Proof of infor- thing, or taken some step, that indicates an intention to break the
mont°oYwnionH Peacei or inat '8 likely to occasion a breach of the peace ; and in the other,
not called as that he is within the category of persons mentioned in section 110, the
witnesses. determination of which question must always be guided by the considerations
pointed out in Empress v. Natcab. A Magistrate is not competent, upon
information that suggests the likelihood of a breach of the peace, to resort
to section 118 of the Code, and it is altogether ultra vires for him to demand
security for three years in such a case. In ordering the arrest of a person
under section 114 of the Code, the Magistrate must act on recorded in
formation ; it is not enough for him to express a belief that such a course is
necessary. Not only must he have " reason to fear the commission of a
breach of the peace," but " that such breach of the peace cannot be
prevented otherwise than by the immediate arrest of such person." Empress
V. Babua, I. L. R., 6 All., 132 (1883).
Security to Where a Magistrate bound down 26 persons to koep the peace under scr-
kceptho peace- tion 491 of the Criminal Procedure Code, 1872, after recording evidence as
Evidence j0 n 0f them only, the order was set aside as to the persons not affected by
the evidence. In re Kassim Bistras and ticenty-Jice others, 10 Cal. L. R.,
335 (1882).
Summons to an" A summons setting out that the person to whom it is directed is charged
near—Non-rod- with an offence under section 491 of the Criminal Procedure Code, 1872,
dent icmindar
-Bounoftokeep an^ requiring' his section.
personal appearance in Court, is notcannot
such alesummons
thc°pcacc° keeP required" by that A non-resident zemindar bound as i»
over
to keep the peace, because his local agents are committing acts likely to
cause a breach of the peace. In re Utaroo Utuiidra Midlick, 10 Cal. L. 1!.,
430 (1882).
S . 107.] Prevention of Offences. 81
Notwithstanding the introduction into the section of the words " the ac- Evidence
cased parson " and "conviction " the provisions of section 328 of the Criminal jjed y^rjgr
Procetlnre Code, 1872, apply to an incpiiry instituted under section 491 with a Hnli partly b y
view to enforcing the giving of security against a breach of the peace, and another,
in such a case, where the Magistrate, by whom only part of the evidence
has been taken, is succeeded by another Magistrate while such an enquiry
is pending, the person called upon to show cause why he should not give
security may insist, before the latter, upon the re-call and re-examination of
the witnesses whose evidence has been already taken by the former Magis
trate. Burola Kant Roy v. Korimuddi Moomhee, 4 Cal. L. K , 452 (1879).
The petitioner, a tehsildar, applied to the police for assistance to protect Security to keep
him while distraining the crops of certain ryots for arrears of rent. On babie^Sa^ce
this being reported to the Magistrate, he required the petitioner to furnish ^ lowfu? collec-
security to keep the peace on the ground that any riot which might result tion of rent .
from the resistance of the ryots to the attachment of their crops would be
attributable to his act. This order was set aside by the High Court as ille
gal, because the Magistrate had not found the petitioner himself was likely
to commit a breach of the peace. In re Sheo Sum Loll, 3 Cal. L. 15., 280
(1878).
The extraordinary powers conferred on the High Court by the Letters Pa- H i ft h Court's
tent, section 15, extend to the revising of orders passed under the Code of Cri- £^7tcrs"patelitr
minal Procedure, 1872, section 518. When a Magistrate makes an order 1111- lection 15—Mil
der this section, on the ground that he has received information, and is satis- fnstrotc'M.j"r!s"
Bed with it, no interference is possible ; but when ho states the nature of the bttoir" order-
information, the High Court can see whether such information justilies the or- Bond to keep
der made. Before a prohibitory order under section 518 can be made, there ought the P08"*5-
to be information or evidence before the Magistrate that the act prohibited was
likely to cause a riot or affray, and that the stoppage of that act would prevent
such riot or affray. After summoning a person to show cause why he should
not enter into a bond to keep the peace, the Magistrate cannot bind over that
person until he adjudicates on evidence before him that such person is likely to
commit a breach of the peace. Gosfiain Luchman Pershad Pooree v. Pohoop
Narain Pooree, 24 W. It., 30 (1875).
Where a Magistrate, instead of proceeding upon evidence judicially taken Evidence-
before him sufficient to show that the accused were contemplating acts which Extra-judicial
would amount to a breach of the peace, acted upon his extra-judicial know ledge, know,cdie-
the High Court set aside his order under section 491, Code of Criminal Proce
dure, 1872, requiring the accused to furnish recognizance. Rajah Run Baha-
door Singh and another v. Ranee Tiletmru Koer, 22 W. R., 79 (1874).
To justify an order under section 491, Code of Criminal Procedure, 1872, R ecurity to
calling on a person to give security to keep the peace, there must be a reason- !l<Reason iTbTo
able probability of a breach of the peace being committed, and not merely a probability,
bare possibility of a breach of the peace. The Queen v. Abool Huq, 20 W. R.,
57 (1873).
To constitute a proper foundation for an order under section 491 of the Brcm,,0!ljtll!;i
Code of Criminal Procedure, 1872, it is necessary that the Magistrate should evidence,
adjudicate upon legal evidence before him that the person against whom the
order is made is likely to commit a breach of the peace, and the Magistrate
should give notice to the party who is to be affected by the order of the parti
cular conduct on his part which is complained of. Where such notico was
given, and the ground of complaint to which such notice had reference was
found by the Magistrate to be unfounded, it was held that the Magistrate could
not proceed to adjudicate that an entirely different ground existed, upon which
it was likely that the party charged would commit a breach of the peace. Ram
Kiehore Acharjee Lhowdhry v. Arip Khan, 21 W. R, 6 (1873).
6
Prevention of Offences. [Chap. VII I,
Power of Ma- Under section 282 of the Criminal Procedure Code, 1861, a Magistrate
Kiitrate-Breach can prevent a person from doing a wrongful act, but not one which the person
WrororfuF'act'.- ma¥ lawfully do. It was not intended that a person should be prevented by
a Magistrate from exercising his rights of property, because another person
would be likely to commit a breach of the peace if he did so. In re Kashi-
chunder Dass, 10 B. L. R., 441 (1873).
Breach of the It is illegal and contrary to the provisions of section 282, Code of Cri-
p^son)-fieco^ nl'nal Procedure, 1861, to take recognizances from one person in order to
niaanoei (from prevent another from committing a breach of the peace. In re Ram Coomar
another). Banerjee v. Rajah Gopal Singh Deb, 17 W. B., 54 (1872.)
Recognizance to The existence of a dispute likely to cause a breach of the peace must be
Judidaf Pem ui- Provet^ DV legal evidence before the Magistrate can proceed to call upon
ry-Eviden'c'e— the parties to enter into recognizances to keep the peace. The report made
Report of polios- by a police-officer that there is a liKelihood of there being a breach of the
officer. peace, is not legal evidence to prove the existence of any dispute likely to
cause a breach of the peace. Abhaya Chowdhry v. T. Brae, 6 Ben. L. B.,
148 (1871).
u p odnCreMon- . .Held (Qloveb. j-> dissentient), the report of a police-officer, though it
ableground's for justifies the issuing of a summons, is not sufficient ground on which to bind
apprehension. a man over in a recognizance to keep the peace. The Magistrate must adju
dicate on the question whether there is reasonable ground for believing that
the defendant is likely to commit a breach of the peace , after taking evi
dence in the presence of the person charged, and giving him an opportu
nity to cross-examine the witnesses. The onus lies on the person who has
obtained the summons to prove that the defendant is likely to commit a
breach of the peace. Government v. Behari Lai Brajabasi, 4 Ben. L. B.,
46 (1869).
Recognisances A statement by a complainant (believe i by the Magistrate) that he
peace6 ' P the exPec''ed the defendant at any time to make an attempt on his person or pro
perty is credible information, within the meaning of section 282 of the Code
of Criminal Procedure, 1861, of an intended breach of the peace. The Magis
trate may require the accused to deposit money, in lieu of security, for bis
good behaviour. Queenw Kristendro Roy, 7 W. B., 30(1867).
^""behaviour 108. Whenever a Chief Presidency or District Magistrate,
from persona or a Presidency Magistrate or Magistrate of the first-class specially
sedE's*' mat- empowered by the Locil Government in this behalf, has inform a-
tortion that there is within the limits of his jurisdiction any person
who, within or without such limits, either orally or in writing, dis
seminates or attempts to disseminate, or in anywise abet* the dis
semination of—
(a) any seditious matter, that is to say, any matter the pub
lication of which is punishable under section 124A of the
Indian Penal Code, or
(b) any matter the publication of which is punishable under
section 158A of the Indian Penal Code, or
(c) any matter concerning a Judge which amounts to criminal
intimidation or defamation under the Indian Peual Code,
such Magistrate may (in manner hereinafter provided) require such
person to show cause why he should not be ordered to execute a
Ss. 108-109.I Prevention of Ofences. 83
bond, with or without sureties, for his good behaviour for such
period, not exceeding one year, as the Magistrate thinks fit to fix.
No proceedings shall be taken under this section against the
editor, proprietor, printer or publisher of any publication regis
tered under, or printed or published in conformity with, the rules
laid down in the Press and Registration of Books Act, * 1867, ex
cept by the order or under the authority of the Governor-General
in Council or the Local Government cr some officer empowered by
the Governor-General in Council in this behalf.
109. Whenever a Presidency Magistrate, District Magis- Security for
trate, Subdivisional Magistrate or Magistrate of the first-class re- |?om Tajrmiu
ceives information— Pe'r18onTpcctcd
(a) that any person is taking precautions to conceal his pre
sence within the local limits of such Magistrate's juris
diction, and that there is reason to believe that such person
is taking such precautions with a view to committing any
offence, or
(A) that there is within such limits a peson who has no
ostensible means of subsistence, or who cannot give a
satisfactory account of himself,
such Magistrate may, in manner hereinafter provided, require such
person to show cause why he should not be ordered to execute a
bond, with sureties, for his good behaviour for such period, not ex
ceeding one year, as the Magistrate thinks fit to fix
Where a person is arrested by the police under the provisions of section s„i,s c qu e 11 1
55 of the Code of Criminal Procedure, 1882, he should always be given the treatment of
option of release on reasonable bail being supplied. In re Daulat Singh, I. L. S'^nndw'tto
K., 14 All., 45 (1891). provisions of
section 55.
Upon general principles, every person is entitled, in the absence of - t •0r
exceptional authority couferred by the law to the contrary effect, when keepinn the
required by the judiciary either to forfeit his liberty or to have his liberty P 0 » <• e- m
qualified, to insist that his case shall be tried separately from the cases of B^''i*,Co"pôof
other persons similarly circumstanced. Where an order has been passed —Joint in 3 u i-
undcr section 107 of the Criminal Procedure Code, 1882, requiring more EjSHfd'e'jft
persons than one to show cause why they should not severally furnish security with in one pro-
for keeping the peace, the provisions of section 239 read with section 117 cecdinn--Nsturo
are applicable, subject to such modifications as the latter section indicates, "r\rtcncentiie"CT-
and to such procedure as the exigencies of each individual case may render Wiry before p»rn-
advisablc in the interests of justice. A joint inquiry in the case of such perin* order for
son is therefore not, ipsofacto, illegal ; and even in cases where one and the *ctM,rl }'
same proceeding taken by the Magistrate under sections 107, 112, 117 and 118
improperly deals with more persons than one, the matter must be considered up
on the individual merits of the particular case, and would at most amount to
an irregularity which, according to the particular circumstances, might or
might not be covered by the provisions under section 537. An order passed by a
Magistrate under sections 107 and 112 of the Criminal Procedure Code, requiring
any person to " show cause " why he should not be ordered to furnish security
« No. XXV of 1867.
for keeping the peace, is not in the nature of a rule nisi implying that the
burden of proving innocence is upon such person. The onus of proof lies
upon the prosecution to establish circumstances justifying t he action of the Ma
gistrate in calling upon persons to furnish security. Where according to the
information received by the Magistrate, there were two opposing parties in
clined to commit a breach of the peace, held, applying by analogy the prin
ciples relating to the trial of members of opposing factions engaged in a riot,
that the Magistrate acted irregularly in taking steps against both parties joint
ly, and in holding the inquiry in a single proceeding. Such a procedure is not,
ipso facto, null and void, but only where the accused have been prejudiced by
it. In proceedings instituted under section 107 of the Code against more persons
than one, it is essential for the prosecution to establish what each individual
implicated has done to furnish a basis for the apprehension that he will com
mit a breach of the peace. In holding buch an inquiry it is in. proper to treat
what is evidence against all, without discriminating between the cases of the
various persons implicated. Although in an inquiry under section 117, the na
ture or quantum of evidence need not be so conclusive as necessary in trials
for offences, the Magistrate should not proceed purely upon an apprehension
of a breach of the peace, but is bound to see the substantial grounds for such
an apprehension are established by proof of facts against each person impli
cated which would lead to the conclusion that an order for furnishing security
is necessary. What the nature of the facts should be depends upon the cir
cumstances of each case, but, where the nature of the Magistrate's informa
tion requires it, overt acts must be proved before an order under section 118
can be made, and such an order canuot be passed against any person simply
on the ground that another is likclv to commit a breach of the peace. Queen-
Empress v. Abdul Kudir, I. L. R., 9 All., 452 (1886).
behaviour*1,800* Before a Magistrate can pass an order directing an accused to furnish bail
and security for his good behaviour, it is necessary that the accused should be
given an opportunity of entering into his defence, and that he should be
clearly informed of the accusation which he has to meet. Queen-Empress v.
Tshwar Lhander Sur, I. L. R., 11 Cal., 13 (1884).
Security to keep A Magistrate ordered sixty-nine persons to show cause why they should
•tanOTonntorm- n0* &ve 8ecur'ty to keep the peace, it having been reported to him by the
ation—Joint in- police and the tehsildar of the pargana in which such persons resided that
QulrT- they were likely to commit a breach of the peace at a religious procession
which was to take place, and the holding of which was opposed to their re
ligious tenets. After an inquiry against all the accused jointly, the Magistrate,
on the evidence of the tehsildar and a sub-inspector of police, ordered that ten
of the accused, who were said to be the "ring-leaders," should enter into
bonds with sureties, and the rest should enter into their own recognizances to
keep the peace for one year. Held, that the Magistrate's order purporting
to be prepared undersection 112 of the Code did not adequately or properly dis
close the substance of the report or information upon which he issued his sum
mons : the parties were entitled to something more than a mere assertion by
the Magistrate that he had been informed that a breach of the peace was
likely to occur, in order to enable them, if they were in a position to do so, to
bring evidence to rebut the truth of such information—that the very loose
statements of the tehsildar and the sub-inspector as to the large majority of
the persons summoned, were quite insufficient to justify the wholesale order for
security passed by the Magistrate— that as the religious procession would have
been over in a fortnight, it was a most excessive exercise of power to require all
the parties to give security for one year—and that the Magistrate should have
dealt with the cases of the ten alleged "ring leaders" first, and should have
required the tehsildar and the sub-inspector to give much fuller statements
seriatim, and particularly as to each individual man ; and as to the remaining
fifty-nine, there should have been some clear and distinct proof, affecting each
S. no.] Prevention of Offences. 85
of them, and warranting the inference that such person was likely to commit a
breach of the peace or to do a wrongful act likely to occasion a breach of the
peace. Queen-Empress v. Nathu, I. L. R., 6 All., 214 (1884).
Orders passed by Sessions Judges in confirmation of orders by Magistrates Revision by
calling upon parties to give security for their good behaviour, though not sub- Hijjh^ Court-
ject to appeal, are open to revision by the High Court under section 404, Code lions judKe „„"
of Criminal Procedure, 1861. With reference to sections 301 and 409, after der Bection 409.
the expiration of the term of confinement in defuult of security, a second ^prûî!
security cannot be demanded except upon some new proof of bad livelihood Security for
or that a person is not capable of following an honest calling. Juswant Singh, good behaviour.
6 W. R., 18 (1866).
110. Whenever a Presidency Magistrate, District Magistrate Security for

or Subdivisional Magistrate or a Magistrate of the first-class spe- fJom bfaaWul
cially empowered in this behalf by the Local Government receives oflen<iera-
information that any person within the local limits of his juris
diction—
(a) is by habit a robber, house-breaker or thief, or
(6) is by habit a receiver of stolen property kno wing the same

to have been stolen,
(c) habitually protects <>r harbours thieves or aids in the con
cealment or dispos.il of stolen property, or
(d) habitually commits mischief, extortion or cheating or
counterfeiting coin, currency notes or stamps, or attempts
so to do, or
(e) habitually commits, or attempts to commit, or abets the
commission of, offences involving a breach of the peace,
(J) is so desperate and dangerous as to render his being at

large without security hazardous to the community,
such Magistrate may, in manner hereinafter provided require

such person to show cause why he should not be ordered to
execute a bond, with sureties, for his good behaviour for such pe
riod, not exceeding three years, as the Magistrate thinks fit to fix.
Where a Magistrate instituting proceedings against a person under u^^ty (or
section 110 of the Code of Criminal Procedure, 1882, has " acted " within the good behaviour
meaning of section 117 of the Code, no order can be made subsequently under —Tranafer.
section 526 of the Code transferring the case from his Court. In re Gudar
Singh, I. L. R., 19 All., 291 (1897).
When security is taken from a man under section 110, Code of Criminal Habitual re-
Procedure, 1882, in evidence of general repute only, that repute should be celver of itolen
proved to be universal and there should be no doubt about it. Alasti Khan Ey|!!*^''0en•"
v. Queen-Emprees, Panj. Rec, 1897, 3. P
86 Prevention of Offences. [Chap. VI It.
Security lor good . Under section 123 of the Criminal Procedure Code, 1882, a Sessions Judge
behaviour- is not competent to remand a case for further euquiry ; such evidence as he
sions" Judge to ma>' require he must take himself. No conditions and limitations can be im-
remand—Condi- posed upon persons ordered to give security under section 1 18 of the Code,
honsnudhmita- J/lojha Sing% v< Queen-Empress, I. L. R., V4 Cal., 155 (1896).
Security for The District Magistrate having failed to get the whole tribe or village, to
good behaviour. wj1ic|1 accused belonged, placed under the Criminal Tribes Act, 1871, proceeded
against the accused, seventeen in number, jointly, under section 110 of the
Criminal Procedure Code, 1882, and called upon them to funish security on
the ground that they were proved to belong to a gang of habitual thieves.
Held, that in the absence of any evidence to prove that the accused constitu
ted a gang, the mere fact that they belonged to one tribe and village with a
bad name was not sufficient evidence of association, and that the accused had,
therefore, been irregularly proceeded against jointly. Murad v. Queen- Empress,
Panj. Rec, 1895, 1.
Security for A Magistrate ordered the accused to execute a bond for Rs. 500 for his
good behaviour good behaviour for one year, and to furnish two sureties for the like amount,
power of inter- The accused failed to furnish the required security, and was sent to prison,
ference when The High Court, being of opinion that the amount of the required security
security01^'e°- waB excessive, and that the Magistrate had not exercised a proper discretion
cessive-Magis- in the matter, interfered in the exercise of its revisional jurisdiction and
trate'9 disere- reduced the amount. Queen-Empress v. Rama. I. L. R., 16 Bom., 372
tion to bepro- mq„x *
perly exercised. t,toa^;.
bchav'fur The mere fact that a person from whom security is required has been
—Prevfo'iwcon- previously convicted of offences against property is not sufficient to justify
viction. proceedings under section 110 of the Code of Criminal Procedure, 1882, un
less there be additional evidence that the person complained against has done
some act or resumed avocations indicating on his part an intention to return
to his former course of life. In the matter of thepetition of Haidar Alt, I. L
R., 12 Cal., 520 (1886).
gS'nohaviour The object of taking security for goo 1 behaviour from a person is solely
—P r e r 1 on • to secure his good behaviour in future The mere record of previous convie-
convictions. tions, on account of which the person has undergone punishment, does not
satisfy the requirements of sections 110, 117 and 118 of the Code of Crimi
nal Procedure, 1882, and it is wrong to use these provisions so as to add to the
punishment for past offences. In re Raja Valad Hussen Saheb, I. L. R., 10
Bom., 174 (1885).
Accusation to Before a Magistrate can pass an order directing an accused to furnish
toeeersoii>tlCned â'' an<' secur'';y ôr his S00(^ behaviour, it is necessary that the accused
upon™°"Ca should be given an opportunity of entering into his defence, and that he
should be clearly informed of the accusation which he has to meet. Queen-
Empress v. Ishwar Chander Sur, I. L. R., 11 Cal., 13 (1884).
Arrest of per- An order was issued to a police-officer directing him to arrest K under
Svosûruvfor
goodSbehaviour K, with theofassistance
sect'on the Criminalof Procedure Code,resisted
three others, 1882, asapprehension
a person of bad
andlivelihood.
escaped.
--Escape from Held, that K was not charged with an "offence" within the meaning of that
ConhvicUone*for term aB defined m section 40 of the Penal Code, and that consequently no
such csoape offence made punishable by section 224 or section 225 of the Penal Code had
illegal. been committed in connection with his evasion of arrest. Queen-Empress v.
Kandhaia, I. L. R., 7 All., 67 (1884).
S. no.] Prevention of 0fences. 87
No appeal lies to the High Court from an order passed by a District Appeal—Secu-
Magistrate under the provisions of section 123 of the Criminal Procedure Code, Jjv ?or SI00*
1882, and on reference by the Magistrate confirmed by the Sessions Judge benav,oa^■
under the same section requiring a person to be detained in prison, until he
should provide security for his good behaviour. Chand Khan v. The Em
press, I. L R., 9 Cal., 878 (1883).
Conversations out of Court with persons, however respectable, are not Information
legal or proper material upon which Magistrates should adopt proceedings breach* 'fWtl "
under section 107 or section 110 of the Criminal Procedure Code, 1882. The peace is °iromi-
information to be required by a Magistrate, before issuing an order under nent—Order to
section 112, may to some extent be of a hearsay and general description ; but ty™r good be-
when the party to whom the order is directed appears in Court in obedience haviour for
thereto, the enquiry must be conducted on the lines laid down in section 117. reôf^Mcused
It is not because a man has a bad character that he is therefore necessarily —Enquiry^"8 to
liable to be called upon for sureties of the peace or for good behaviour, truth of iufor-
There must be satisfactoty evidence in the one case that he has done some- oftnlormation—
thing or taken some step that indicates an intention to break the peace or Statements of
that is likely
within to occasion
the category a breach
of persons of the peace
mentioned ; and in
in section 110,thetheother, that he is S™s
determination *" 'witnesses*
*' nemes'
of which question must always be guided by the considerations pointed out
in Empress v. Nuwab. A Magistrate is not competent, upon information that
suggests the likelihood of a breach of the peace, to resort to section 110 of the
Code, and it is altogether ultra vires for him to demand security for three
years in such a case. In ordering the arrest of a person under section 114
of the Code, the Magistrate must act on recorded information ; it is not
enough for him to express a belief that such a course is necessary. Not
only tnust he have " reason to fear the commission of a breach of the
peace," but "that such breach of the peace cannot be prevented other
wise than by the immeJiate arrest of such person." Empress v. Babua, I. L.
B., 5 All., 132 (1883).
An accused person was convicted of theft and sentenced to two years' Security for
rigorous imprisonment, and was further ordered to enter into his own S°od benaviour.
recognizances for Us. 50 and find two sureties, each for a like sum, for his
good behaviour for one year after the term of his imprisonment had expired;
in default to suffer rigorous imprisonment for one year. Held, that the latter
part of the order was bad, and that the Magistrate should have proceeded
under the provisions of section 504, clause 2, of the Code. Tamiz Mandal
v. Umid Karegar, I. L. R., 9 Cal., 215 (1882).
The exercise of the power given by section 505 of the Criminal Proce- Evidence as to
dure Code, 1872, is not confined to cases in which positive evidence of the bo""*1 eha-
commission of crime is forthcoming against the persons charged. In the rac r'
matter of the petition of Pedda Sica Eedde, I. L. R., 3 Mad., 238 (1881).
The powers given by sections 505 and 506 of the Code of Criminal Proce- Deposit of cash
dure, 1872, should be exercised with extreme discretion ; the former of these }n_f}i0i,ecuri"
sections is not intended to apply to persons of " by no means a reputable «Jod behaviour'
character " An order requiring persons to deposit cash in lieu of entering into
a bond as security for their future good behaviour is bad in law. The Em
press v. Kala Chand Das, I. L. R., 6 Cal., 14 (1880).
On a requisition from the High Court a Magistrate is bound to state the Security for
grounds upon which he fixed the amount of security. A person from whom behaviour
security for good behaviour is demanded should have a fair chance afforded comply?6 40
him to comply with the required conditions of security. The Empress v. De-
dar Sircar, I. L. R., 2 Cal., 384 (1877).
Bad livelihood _ A person against whom proceedings for bad livelihood have been taken is
—Charge— entitled to have embodied in a charge the precise matter which the Magistrate
matter proved— considers established by evidence against him. It is not sufficient to say
Witnesses— generally that there is suspicion. He should be asked to produce his witnesses
Bsi1, or offered assistance to procure their attendance. He should be admitted to
bail. A Magistrate is not competent to refuse bail unless the law sanctions
such refusal. In re Kookor Singh, 1, C. L. R., 130 (1877).
OWect of Chap- The object of Chapter XXXVIII, Code of Criminal Procedure, 1861, is the
of'the Code of Prevention n°t the punishment of crime. When a charge of a specific offence
1861. is under trial, proceedings under Chapter XXXVIII should not be instituted.
In re Umbica Proshad, 1, C. L. It., 268 t.1877).
Power of High In a case of apprehended breach of peace, the Magistrate bound over the
rinêricr "at°" Parties in sum8 of m°ney aggregating on the whole to Es. 60,000 or upwards.
The High Court quashed the order, holding that it was altogether unreason
able. Per Mabkby, J.—Sections 294 and 297, Act X of 1872, do not debar the
High Court from interfering when, in cases requiring the exercise of discretion,
it appears upon the face of the proceedings that the Magistrate has exercised
no discretion at all or has exercised his discretion in a manner wholly unrea
sonable. Per Mitter, J. — Under section 297, the High Court has the power of
interfering with judgments, sentences, or orders of Court subordinate to it, if
there has been a material error in any judicial proceedings of such Courts,
meaning thereby any error appearing on the face of a judicial proceeding
resulting in an unjust order. In re Juggut Chunder Chuckerbuity, I, L. R., 2
Cal., 110 (1876).
Security with In making an order for security to keep the peace under section 505, Code
condition. 0£ Criminal Procedure, a Magistrate has no right to impose an arbitrary
condition not essential to restrain a party from the infringement of the law,
e. g.t a condition requiring the accused to furnish two sureties, being persons
of respectability and substance not related to him, and residing within one mile
of his house. The ground on which a Magistrate has power to refuse to ac
cept any surety under section 516 must be valid and reasonable ground. Na-
rain Sooboddhee, 22 W. R., 37 (1874).
Revision by Orders passed by Sessions Judges in confirmation of orders by Magistrates
Orders of Ses- ca">ng upon parties to give security for their good behaviour, though not sub-
niona Judge un- ject to appeal, are open to revisions by the High Court under section 404,
Act'^XXV**?; Co(io of Criminal Procedure, 1861. With reference to sections 301 and 409,
1861—Security after the expiration of the term of confinement in default of security, a second
for good beha- security cannot be demanded except upon some new proof of bad livelihood, or
lll"ir' that a person is not capable of following an honest calling. JusiPtutt Singh , 6
W. R., 18 (1866).
European M to 111, The provisions of sections 109 and 110 do not apply to
vagrants. European British subjects in cases where they may be dealt with
under the European Vagrancy Act, * 1874.
[Interpretation- [3 (Act IX of 1874). In this Act—
clause ]
European
Kuropean ex-' " Person ot European extraction " includes—
traction.]
(a) persons born in Europe, America, the West Indies, Australia,
Tasmania, New Zealand, Natal, or the Cape Colony ;
• No. IX of 187*.
S. in.] Prevention of Offences. 89
(i) the sons and grandsons of such persons ; but does not include
persons commonly called Eurasians or East Indians :
" Vagrant " means a person of European extraction found asking [-vagrant.']
for alms, or wandering about without any employment or visible means
of subsistence :]
[5 (Act IX of 1874). The Presidency Magistrate or Justice of the [Summary en-

Peace shall, in such case, or in any other case where a person apparently 2mm-» circum-
a vagrant comes before him, make a summary enquiry into the circum- »t»nces.]
stances and character of the apparent vagrant ; and, if he is satisfied y^rancy ]°n °'
that such person is a vagrant, he shall record in his office a declaration
to that effect.
If he is further of opinion that the vagrant is not likely to obtain [order to go to
employment at once, or if he has reason to believe that a declaration of work-house.]
vagrancy has on any former occasion been recorded in respect of such
vagrant, he shall require the vagrant to go to a Government work-house,
and shall draw up an order to that effect.
The vagrant shall then be placed in charge of the police for the
purpose of being forwarded to the work-house, and the said order shall
be a sufficient authority to the police for retaining him in their charge
while he is on his way to the work-house, and to the governor of the
work-house for receiving and detaining such vagrant.]
[The following are rule; framed by the Governor-General in Conn- [Rules under
cil for the guidance of officers in nutters connected with the enforcement va^ncy°PAct
of Act IX of 1874 (the European Vagrancy Act) : — iXofisn.]
I.—The expression " person of European extraction " includes for

the purposes of the Act and these rules (1) persons born in Europe,
America, the West Indies, Australia, New Zealand, Tasmania, Natal and
the Cape Colony ; and (2) the sons and grandsons of such persons : but
does not include persons commonly called Eurasians or East Indians.
II.—For the arrest and custody of vagrants, Europeans or Eura
sian police-officers shall, whenever it may be practicable, be employed in
preference to native officers.
III.—Whenever any person, apparently a vagrant, refuses or fails

to comply with any requisition mide by a police-officer under section 4
of the Act,
whenever any person of European extraction commits an

offence under section 23 of the Act in view of a police-officer, and when
ever any police-officer has reason to think that such offence has been or is
being committed, the person so refusing, failing or offending, may be
forthwith arrested without warrant by the police-officer for the purpose
of being produced in the usual manner before the officer empowered to
deal with the case.
IV.—The " subsistence allowance " of the vagrant shall not ordi
narily be made over to him, but shall be kept and disbursed on his ac
count by the police or other officer in whose custody he is for the time
being.
V.— No certificate shall be given under section 9 unless there be

good ground for believing that the person applying for it is bona fide in
search of employment, has a fair chance of obtaining it, and is of quiet
and orderly behaviour.
VI.—The certificates shall be printed on parchment or paper of very
durable character, and shall be in English, with translation in the two
principal vernacular languages of the territories under the Local Govern
ment.
VII.—The time allowed under section 16 for search after employ
ment shall not ordinarily exceed two months, and shall not in any case
exceed six months.
VIII.—In the Presidency towns the Commissioner of Police, and
elsewhere Magistrates with full powers, being also Justices of the Peace,
shall be competent to act on behalf of the Secretary of State in Couucil
in making agreements under section 17.
IX.—All such agreements shall be executed in duplicate, and the

officer executing on behalf of the Secretary of State in Council shall re
tain one of the copies.
X.—When an agreement has been entered into by a vagrant under

section 17, he shall be forwarded, along with the original agreement, in
the charge of a police-officer to the officer at the port of embarkation who
is empowered by the Local Government to receive vagrants ; and there
after and until his embarkation he shall remain in the custody of that
officer, or of such other officer as the Local Government empowers in
this behalf.
He shall during such time be entitled to subsistence allowance of
eight annas per diem, to be disbursed as directed in Rule IV.
XI.—Local Governments within whose jurisdiction ports are

situated shall make all necessary arrangements for the reception and
custody of vagrants sent for deportation by other Local Governments or
authorities in the interior. They will, from time to time, as may be
necessary, give notice of such arrangements to the forwarding authori
ties.
XII. —Road expenses shall be provided by the forwarding authority.
All further expenses incurred in proceedings under Chapter IV of the
Act shall be defrayed by the Local Government of the port of embark
ation on account of the Secretary of State in Council,
S. 112.] Prevention of Offences.
XIII.—No agreement for deportation shall be entered into with

any person of European extraction born in this country, and who has
never been out of it, unless he satisfies the Local Government that he is
likely to gain a livelihood in some place out of India.
XIV. —The officer empowered to direct the deportation of vagrants

will see that no unnecessary time is lost for providing passage for those
who have entered into agreements to be deported. As a rule, Europeans
should be sent to Europe, Americans to America, West Indians to the
West Indies, Australians to Australia, and New Zealanders to New
Zealand. But the local authorities will exercise their discretion in
sending vagrants to other countries than their own when it appears that
such a course will be for their advantage, and that they will be favour
ably received on arriving at their destination.
XV.—Descriptive rolls and, as far as possible, photographs of all

persons deported shall be kept by the Local Governments or Administra
tions within whose territory the ports are situated.]
{Manual of orders of Government, N.-W. P. and Oudh, Vol. I,
Part VI, p. 267).
112. When a Magistrate acting under section 107, section made! '° 1)0
108, section 109 or section 110 deems it necessary to require any
person to show cause under such section, he shall make an order
in writing, setting forth the substance of the information received,
the amount of the b.jnd to be executed, the term for which it is
to be in force, and the number, character and class of sureties (.if
any) required.
A Magistrate ordered the accused to execute a bond for Rs. 500 for his Hi*h CjU|„tJ|r.
good behaviour for one year, and to furnish two sureties for the like ainount. fer"ence°w \\ q n
The accused failed to furnish the required security, and was sent to prison, the amount of
The High Court, being of opinion that the amount of the required security "essive* StnitH-
was excessive, and that the Magistrate had not exercised a proper discretion in trate'a discre-
the matter, interfered in the exercise of its revisional jurisdiction and re- tion 10 he .{"5"
duced the amount. Queen-Empress v. Rama, I. L. R., 16 Bom., 372 (1892). p y exeTCXsea-
The mere fact that a person from whom security is required has been ^[^"g c0""
previously convicted of offences against property is not sufficient to justify denee"^ iubse-
proceedings under section 1 10 of the Code of Criminal Procedure, 1882, un- quent act, *c.
less there be additional evidence that the person complained against has
done some act or resume 1 avocations indicating on his part an intention
to return to his former course of life. In re flaidar Ali, I. L. B., 12 Cal., 520
(1886)
Upon general principles, eveiy person is entitled, in the absence of ex- £j^„"£nJ™y
ceptional authority conferred by the law to the contrary effect, when required -opposing fur-
by the Judiciary either to forfeit his liberty or to have his liberty qualified, to tions d<*ilt with
insist that his case shall be tried separately from the cases of other persons si- Sng'^jr'aTur e
niilarly circumstanced. Where an order has been passed under section 107 of the and quantum of
Criminal Procedure Code, 1882, requiring more persons than one to show ^""^""ore
cause why they should not severally furnish security for keeping the peace, pissing order
the provisions of section 239 read with section 1 17 are applicable, subject to such tor security.
Prevention of Offences. [Chap. VIII.
modifications as the latter section indicates, and to such procedure as the exi
gencies of each individual case may render advisable in the interests of jus
tice A joint enquiry in the case of such persons is therefore not, ip«o facto,
illegal ; and even in cases where one and the same proceedings taken by the
Magistrate under sections 107, 112, 117 and 118 improperly deals with more
persons than one, the matter must be considered upon the individual merits of
the particular case, and would at most amount to an irregularity which, according
to the particular circumstances, might or might not be covered by the provisions
of section 537. An order passed by a Magistrate under sections 107 and 112 of
the Criminal Procedure Code, requiring any person to " show cause " why
he should not be ordered to furnish security for keeping the peace, is not in tho
nature of a rule nisi implying that the burden of proving innocence is upon
such person. The onus of proof lies upon the prosecution to establish cir
cumstances justifying the action of the Magistrate in calling upon to furnish
security. Where according to the information received by the Magistrate,
there were two opposing parties inclined to commit a breach of the peace—
held, applying by analogy the principles relating to the trial of members of
opposing factions engaged in riot, that the Magistrate acted irregularly in
taking steps against both parties jointly, and in holding the enquiry in a sin
gle proceeding. Such a procedure is not, ipsofacto, null and void, but only
where the accused have been prejudiced by it. In proceedings instituted
under section 107 of the Code against more persons than one, it is essential
for the prosecution to establish what each individual implicated has done
to furnish a basis for tho apprehension that he wi l commit a breach of the
peace. In holding such an enquiry it is improper to treat what is evidence against
one of such persons is evidence against all, without discriminating between
the cases of the various persons implicated. Although in an enquiry under
section 117 the nature or quantum of evidence need not be so conclusive as is
necessary in trials for offences, the Magistrate should not proceed purely upon
an apprehension of a breach of the peace, but is bound to see that substantial
grounds for such an apprehonsion are established by proof of facts against
each person implicated which would lead to the conclusion that an order for
furnishing security is necessary. What the nature of the facts should be
depends upon the circumstances of each case, but, where the nature of
the Magistrate's information requires it, overt acts must be proved before
an order under section 118 can be made, and such an order cannot be passed
against any person simply on the ground that another is likely to commit
a breach of the peace. Queen-Empress v. Abdul Kadir,l. L. B., 9 All.,
452 (1886).
Security for The object of taking security for good behaviour from a person is solely
^Rde ceorVtt°of '° secure ''is good behaviour in future. The mere record of previous convic-
previous co n- tions, on account of which the person has undergone punishment, does not
denco
quo™ oTsub
uct,Uetc!! Hati8fy tllc requirements
Procedure, 1882, and it isof wrong
sectionsto1 10,
use 117 andprovisions
these 118 of thesoCode
as toofadd
Criminal
to the
liocoswiry. ' punishment for past offences. Jn re Raja Valad Hussein Saheb, I. L. K.
10 Bom.. 174 (1885).
emerin^'into0' Before a Magistrate can pass an order directing an accused to furnish bail
defence—No- and security for his good behaviour, it is necessary that the accused should bo
cusat?onth<3 a°' £'ên an opportunity of entering into his defence; and that he should be clear-
sii ion. j- mfonne([ 0£ t],e accU8ati0n which he has to meet. Queen-Empress v. Ishicar
Chandar Sur, I. L. B., 11 Cal , 13 (1884).
fr^mm ™ — ^ Magistrate ordered sixty-nine persons to show cause why they should
JoinTenquiry. not give security to keep the peace, it having been reported to him by the
police and the tehsildar of the pargana in which such persons resided that they
were likely to commit a breach of the peace at a religious procession which was
S. 112.] Prevention of Ofetices. 93
about to take place, and the holding of which was opposed to their religious
tenets. After an enquiry, as against all the accused jointly, the Magistrate, on
the evidence of the tehsildar and a sub-inspector of police, ordered that ten
of the accused, who were said to be the " ring-leaders," should enter into bonds
with sureties, and the rest should enter into their own recognizances to keep the
peace for one year. Held, that the Magistrate's order purporting to be prepared
under section 112 of the Criminal Procedure Code, 1882, did not adequately
or properly disclose the substance of the report or information upon which he
issued his summons : the parties were entitled to something more than a mere
assertion by the Magistrate that he had been informed that a breach of the
peace was likely to occur, in order to enable them, if they were in a position
to do so, to bring evidence to rebut the truth of such information— that the
very loose statements of the tehsildar and the sub-inspector as to the large
majority of the persons summoned were quite insufficient to justify the whole
sale order of the security passed by the Magistrate, that as the religious pro
cession would have been over in a fortnight, it was a most excessive exercise
of power to require all the parties to give security for one year and that the Ma
gistrate should have dealt with the cases of the ten alleged " ring-leaders " first,
and should have required the tehsildar and sub-inspector to give much fuller
statements striatim, and particularly as to each individual man ; and as to the re
maining fifty-nine there should have been some clear and distinct proof affect
ing each of them, and warranting the inference that such person was likely to
commit a breach of the peace or to do a wrongful act likely to occasion a
breach of the peace. Queen- Empress v. Natku, I. L. B., 6 All., 214 (1884).
Where a Magistrate bound down 2S persons to keep the peace under sec- Evidence
tion 491 of the Criminal Procedure Co le, 1872, after recording evidence as to nf"^m' "
1 1 of them only, the order was set aside as to the persons not affected by the called upon?nS
evidence. In re Kastim Biswas, lOCal. L. R., 335 (1882).
A witness for the defence in a case of rioting having admitted being Bond to keep
present at or near the scene of the riot and denied that the accused took any ncssÂccTsed'.'"
part in it, the Magistrate, after finding the accused guilty and without further
proceedings, called upon both the accused and his witness to enter into bonds
to keep the peace for one year. Held, that this procedure was illegal so far as
the witness was concerned. The Queen v. Kadar Khan, I. L. R., 5 Mad.,
380 (1882).
Conversations out of Court with persons, however respectable, are not Information
legal or proper material upon which Magistrates should adopt proceedings JreMh'oMho
under section 107 or section 110 of the 'Criminal 'Procedure Code, 1882. The peace is immi-
information to be required by a Magistrate, before issuing an order under nent—Order to
section 112, may to some extent be of a hearsay and general description ; {""(IJSoVfSmvJ!
but when the party to whom the order is directed appears in Court in obe- our tor t h r ee
dience thereto, the inquiry must be conducted on the lines laid down in J^JJÎJ^n',"!
section 117. It is not because a man has a bad character, that he is there- ry as to truth of
fore necessarily liable to be called upon for sureties of the peace or for good inforjnati o n—
behaviour. There must be satisfactory evidence in the one case that he has môn—State-
done something, or taken some step, that indicates an intention to break the ments of per
peace or that is likely to occasion a breach of the peace ; and in the other, ^"vjt""',^1'6'1
that he is within the category of persons mentioned in section 110, the deter
mination of which question must always be guided by the considerations
pointed out in Enpress v. Nawah. A Magistrate is not competent, upon
information that suggests the likelihood of a breach of the peace, to resort to
section 110 of the Criminal Procedure Code, and it is altogether ultra vires for
him to demand security for three years in such a case. In ordering the arrest of
a person under section 114 of the Code, the Magistrate must act on recorded
information ; it is not enough for him to express a belief that such a course is
necessary. Not only must he have " reason to fear the commission of a breach
94 Prevention of Offences. [Chap. VI 1 1.
of the peace," but " that such breach of the peace cannot be prevented other-
wine than by the immediate arrest of such person." Empress v. Babua.
I. L. R., 6 All., 132 (1883).
Evidence-Vio- Held, that section 506 of the Code of Criminal Procedure, 1872, solely re-
for good' Colrl'v?- 'ates to l'le calling upon persons of habitually dishonest lives, and in that sense
our. " desperate and dangerous," to find security for good behaviour, as a protection
to the public against a repetition of crimes by them in which the safety of
property is menaced and not the security of the person alone is jeopardised.
Where, therefore, the evidence adduced before the Magistrate did not show
that a person was "by habit a robber, house-breaker, or thief, or a receiver of
stolen property, knowing the same to have been stolen," but showed only
that he had been guilty of acts of violence, held, that the Magistrate could
not, under section 506 of the Code, order such person to furnish security.
Observations regarding the evidence on which the procedure of section 506
should be enforced. Empress of India v. Nwoab, 1 L. K., 2 All., 835 (1880).
bouiidVo^staio ^n a re(lu'8't'0n froni tMe High Court a Magistrate is bound to state the
grounds upon grounds upon which he fixed the amount of security. A person from whom
which security security for good behaviour is demanded should have a fair chance afforded
Oourtied_U n'm t0 comply with the required conditions of security. Tlie Empress v.
Dedar Sircar, I. L. R., 2 Cal., 384 (1877).
the amount"* '^',e amount °' the security to be furnished for good behaviour should be
such as to afford the person a fair chance of complying with the order, so as
not to make the alternative imprisonment unavoidable. Such imprisonment is
not a punishment for a crime committed, but as a protection to society against
the perpetration of a crime by the individual on his,failing to furnish other se
curity. When the amount of security required is primafacie unreasonable the
High Court can call upon the Magistrate to certify the grounds fixing that
amount. In re Dedar Baksh, 1 Cal. L R., 95 (1877).
Personal re- Where information of a probable breach of the peace is first laid in
T°?inrofCroquT general terms, and is subsequently supported by evidence, which is given in the
•ition-Gviilencc presence of the persons who are particularly implicated by it, the case for a
of broach of tho delnand for recognizances may properly rest on the whole evidence taken in
peace- case . W|1CH a Magistrate calls upon persons to show cause why they
should not be bound down in their own recognizances to keep the peace, he
cannot go beyond the requisition, and on the adjudication of the matter order
them to furnish other securities besides. In re A bdool Bari, 25 W. R., 50
(1876).
Surety to An order by a Magistrate requiring security for good behaviour which
pledge all his directed that the surety should pledge all his proprietary rights in land worth
rPighPt-illiSiry Rs 200 was held to be illegal. Queen v. Ganni, N.-W. P., H. C, 1875, p. 249.
Arbitrary pou- In making an order for security to keep the peace under section 505, Code
dition-Vnlid 0f Criminal Procedure, 1872, a Magistrate has no right to impose an arbitrary
ground"01"1''10 condition not essential to restrain a party from the infringement of the law,
e. g., a condition requiring the accused to furnish two sureties, being persons
of respectability and substance not related to him, and residing within one
mile of his house. The ground on which a Magistrate has power to refuse to
accept any surety under section 510 must be a valid and reasonable ground.
In re Narain Sooboddhee, 22 W. R., 37 (1874).
Conduct of I" 11 case in which parties are summoned to show cause why they should
proceeding- Bot be bound down to keep the peace, the proceeding should be conducted
fo'rS'v. Wliat with due reSarfl to tll,J provisions of sections 491 and 492 of the Code of
Criminal Procedure, 1872, and the sunimous should distinctly specify the
amount and nature of the security required, and the time for which the secu
rity is to run. The Queen v. Gunga Singh, 20 W. R., 36 (1873).
Ss. 1 13-1 14.] Prevention of Offences. $5
To constitute 11 proper foundation for an order under section 491 of the Adjudication on
Code of Criminal Procedure, 1872. it is necessary that the Magistrate should ^ "t
adjudicate upon legal evidence before him that the person against whom the ticulxr conduct
order is made is likely to commit abroach of the peace, and the Magistrate ~*dJu*iJ*£i° J
should give notice to the party who is to be affected by the order of the grounds,
particular conduct on his part which is complained of where such notice
was given, and the ground of complaint to which such notice had refer
ence was found by the Magistrate to be unfounded, it was held that the
Magistrate could not proceed to adjudicate that an entirely different ground
existed, upon which it was likely that the party charged would commit a breach
of the peace. Ram Kithore Acharjee Chowdhry v. Arip Khan, 21 \V. R., 6
(1873).
The summons to a person to show cause why he should not be required Substance of the
to furnish recognizances to keep the peace should, under section 283, Code of pr^b^y "f"^
Criminal Procedure, 1861, set out the substance of the information against breach 01 the
him. When the party summoned shows cause, the Magistrate, in taking evi- peace,
dence, should look, not merely to the question of possession, but also whether
he is satisfied that there was a probability of a breach of the peace. Koonj
Beharee Chowdhry v. Eknath Cfurain, 15 W. R., 43 (1871).
A Magistrate may, under section 291 of the Code of Criminal Procedure, Cancel inent
1801, cancel an order passed by him under section 282 of that Code, sum- ofordcrto show
moning a person to show ca use why he should not enter into a bond to keep cau''0-
the peace. Reference under section 434 of the Co le, 10 W. R., 40 (1868).
The order in this case calling upon the prisoner to furnish security forp.er"on °'»
good behaviour under section 297, Co le of Criminal Procedure, 1861, set aside bule'u charac-
as erroneous, that section not referring to persons of a violent or turbulent cha- ter.
racter. In re Narain Sooboodhi, 6 W. R., 6 (1866).
113* If the person in respect of whom such order is made Procedure in
is present in Court, it shall be read over to him, or, if he so desires, ^prescntm
the substance thereof shall be explained to him- Court.
114. If such person is not present in Court the Magis- Summons or
trate shall issue a summons requiring him to appear, or, when such J personnotso8
person is in custody, a warrant directing the ofheer in whose cus- vnsmt.
tody he is, to bring him befora the Court :
Provided that whenever it appears to such Magistrate, upon
the report of a police-officer or upon other information (the sub
stance of which report or information shall be recorded by the Ma
gistrate), that there is reason to fear the commission of a breach
of the peace, and that such breaoh of the peace cannot be prevented
otherwise than by the immediate arrest of such person, the Magis
trate may at any time issue a warrant for his arrest
For form of summons, see schedule V, No. 12.
A warrant was issued by a Magistrate for the arrest of one Dalip under yilllt hi lho"ie-
section 114 of the Code of Criminal Procedure, 1882. The warrant was sent cution of his "
to a certain thana to be executed. It was there, after being copied into a Arrest' with''-
book kept for that purpose at the thana, made over to a particular constable sunVienVauiiio*
for execution. When the constable to whom the warrant had been made over jity. butinnood
had left the thana, it was discovered that Dalip was in a village other than that £1'^ ^'inST
in which he had been supposed to be. Thereupon the officer temporarily in arrest— Riiditof
charge of the thana made a copy from the book at the thana, endorsed on Privatc defence
the back the names of one Nazir Ilussain and some other constables, and. hav
ing signed the endorsement, sent Nazir Ilussain and the others out with thi*
96 Prevention of Offences, [Chap, VIII.
paper to arrest Dalip. Nazir Hussain and his companions'arrested Dalip ; but, as
they were returning with him in custody, some of Dalip's friends, aided by
Dalip himself, attacked them, rescued Dalip and caused hurt to the police.
Held, that the police-officers concerned in arresting Dalip under the circum
stances above described were not acting in the lawful discharge of their duty
within the meaning of section 332 of the Penal Code, so as to render the
accused liable to conviction under that section ; but inasmuch as they were
acting in good faith under the colour of their office, section 99 of the Penal
Code applied, and Dalip and his associates might be properly convicted under
sections 147 and 323 of the Code. The words "in the discharge of his duty
as such public servant " in the earlier portion of section 332 of the Penal Code
mean in the discharge of a duty imposed by law on such public servant in the
particular case, and do not cover an act done by him in good faith under
colour of his office. Queen-Empress v. Dalip, I. L. 1?., 18 All., 24G (1896).
Copy of order 115. Every summons or warrant issued under section 114.
under section . * J , „ . . , ,
us to accom- shall be accompanied by a copy oi the order made under section
pany summons 112, and such copy shall be delivered by the officer serving or exe
or warrant.
cuting such summons or warrant to the person served with, or
arrested under, the same.
Power to dis- 116. The Magistrate may, if he sees sufficient cause, dis-
•onaf âtteJSn ponse with the personal attendance of any person called upon to
ance- show cause why he should not be ordered to execute a bond for
keeping the peace, aud may permit him to appear by a pleader.
trictCMaC,istDit" ^ Magistrate has no jurisdiction to take proceedings under section 107
to call on person of the Criminal Procedure Code, 1882, against a person not personally within
residing in an* lug jurisdiction. Even assuming there was jurisdiction, it was not a case
for CT security— where the Magistrate should have called upon the petitioner to appear person-
Personal atton- ally, he residing at a distance, there being no special circumstance making his
glance. personal attendance necessary, and the Magistrate having power under section
1 16 to allow him to appear by a pleader. Dinonath Mtillick v. Girija Prosomw
Mookerjee, I. L. R., 12 Cal., 133 (1885).
truth"of "infor* H7. (-7) When an order under section 112 lias been read
1 or explained under section 113 to a person present in Court, or
when any person appears or is brought before a Magistrate in
compliance with, or in execution of, a summons or warrant
issued under section 114, the Magistrate shall proceed to inquire
into the truth of the information upon which action has been
taken, and to take such further evidence as may appear necessary.
(<?) Such inquiry shall be made, as nearly as may be prac
ticable where the order requires security for keeping the peace,
in the manner hereinafter prescribed for conducting trials and
recording evidence in summons-cases ; and where the order re
quires security for good behaviour, in the manner hereinafter
prescribed for conducting trials and recording evidence in war
rant cases, except that no charge need be framed.
(3) For the purposes of this section the fact that a person
is an habitual offender may be proved by evidence of general
repute or otherwise.
Ss. 1 1 5- 1 17.] Prevention of Offences. 97
(^) Where two or more persons have been associated to

gether in the matter under inquiry, they may be dealt with in
the same or separate inquiries as the Magistrate shall think just.
Where a Magistrate instituting proceedings against a person under Inquiry into
section 110 of the Code of Criminal Procedure, 1882, has "acted " within the ^J^1^'0^
meaning of section 117 of the Code, no order can be made subsequently the case,
under section 526 of the Code transferring the case from his court. In re
Gudar Singh, I. L. R., 19 All., 291 (1897).
Evidence that there are rumours in a particular place that a man has General repute,
committed acts of extortion on various occasions, that he has budmashes in Rumours,
his employ to assist him, and generally that he is a man of bad character is
not evidence of general repute under section 117 of the Criminal Procedure
Code, 1882. Evidence of rumour is mere hearsay evidence of a particular
fact. Evidence of repute is a different thing. A man's general reputation
is the reputation which he bears in the place in which he lives amongst all
the townsmen, and if it is proved that a man: who lives in a particular place
is looked upon by his fellow townsmen, whether they happen to know him
or not, as a man of good repute, that is strong evidence that he is a man of
good character. On the other hand, if the state of things is that the body
of his fellow-townsmen, who know him, look upon him as a dangerous man
and a man of bad habits, that is strong evidence that he is a man of bad
character. It cannot be said that, because there are rumours in a particular
place among a certain class of people that a man has dono particular acts or
has characteristics of a certain kind, these rumours are in themselves evi
dence under section 117 of the Code. Rat Isri Pershad v. Queen-Empress,
I. L. R., 23Cal., 621 (1895).
Upon general principles, every person is entitled, in the absenco of Burden or proof
exceptional authority conferred by the law to the contrary effect, when requir- ;JLoint .'"fluir.v
cd by the judiciary either to forfeit his liberty or to have his liberty qualified, tion»IHt*with
to insist that his case shall be tried separately from the cases of other persons In one proceed-
similarly circumstanced. Where an order has been passed under section 107 JnVojuuiUnM)?
of the Criminal Procedure Code, 1882, requiring more persons than one to evidence neces-
show cause why they should not severally furnish security for keeping the wry >>efore paju-
peace, the provisions of section 239 read with section 117 are applicable, sub- JScurity."" °r
ject to such modifications as the latter section indicates, and to such procedure
as the exigencies of each individual case may render advisable in tho interests
of justice. A joint inquiry in the case of such persons is therefore not, ipso
facto, illegal : and even in cases where one and the same proceeding taken by
the Magistrate under sections 107. 112. 117andll8 improperly deals with more
persons than one, the matter must be considered upon the individual merits
of the particular case, and would at most amount to an irregularity which,
according to the particular circumstances, might or might not be covered by the
provisions of section 537. An order passed by Magistrate under sections 107
and 112 of the Code, requiring any person to " show cause" why be should not
be ordered to furnish security for keeping the peace, is not in the nature of a
rule nisi implying that the burden of proving innocence is upon such person.
The onus of proof lies upon the prosecution to establish circumstances justify
ing the action of tho Magistrate in calling upon persons to furnish security.
ere, according to the information received by the Magistrate, there were
two opposing parties inclined to commit a breach of the peace,—held, applying
by analogy the principles relating to the trial of members of opposing factions
engaged in a riot, that the Magistrate acted irregularly in taking steps against
both parties jointly, and in holding the inquiry in a single proceeding. Such
a procedure is not, ipsofacto, null and void, but only where the accused have
been prejudicediby it. In proceedings instituted under section 107 of the Code
against more persons than one, it is essential for the prosecution to establish
7
what each individual implicated has done to furnish a basis for the appre
hension that he will commit a breach of the peace. In holding such an enqui
ry it is improper to treat what is evidence against one of such persons as evi
dence against all, without discriminating between the cases of the various persons
implicated. Although in an enquiry under section 117, the nature or quantum
of evidence need not be so conclusive as is necessary in trials for offences,
the Magistrate should not proceed purely upon an apprehension of a breach
of the peace, but is bound to see that substantial grounds for such an appre
hension are established by proof of fact against each person implicated which
would lead to the conclusion that an order for furnishing security is necessary.
What the nature of the facts should be depends upon the circumstances of each
case, but, where the nature of the Magistrate's information requires it, overt
acts must be proved before an order under section 118 can be made, and such
an order cannot be passed against any person simply on the ground that
another is likely to commit a breach of the peace. Queen-Empress v A bdul
Kadir, I. L. R., 9 All., 452 (1886).
SotM.0"' conT'c" The object of taking security for good behaviour from a person is solely
to secure his good behaviour in future. The mere record of previous convic
tions, on account of which the person has undergone punisliment, does not
satisfy the requirements of sections 110, 117 and 118 of the Code of Criminal
Procedure, 1882, and it is wrong to use these provisions so as to add to the
punishment for past offences. In re Raja Valad Hussein Saheb, 1. L. R., 10
Bom., 174 (1885)
mation oSmSm Before a Magistrate can pass an order directing an accusod to furnish
accusation-Do- bail and security for his good behaviour, it is necessary that the accused should
fenoe. be given an opportunity of entering into his defence ; and that he should be
clearly informed of the accusation which he has to meet. Queen-Empress v.
lthwar Chandra Sur, I. L. R., 11 Cal., 13 (1884).
Arrest of per- An order was issued to a police-officer directing him to arrest A' under sec-
son required to tion 55 of the Criminal Procedure Code, 1882, a person of bad livelihood. K,
forgood'behav? with the assistance of three others, resisted apprehension and escaped. Held
our—Escape that K was not charged with an " offence" within the meaning of that term as
arrest—ConvTc- defined 'n section 40 of the Penal Code, and that consequently no offence made
tion for such punishable by section 224 or section 225 of the Penal Code had been commit-
esctpe illegal, ted in connection with his evasion of arrest. Queen-Empress v. Kandhaia,
I. L. R., 7 All., 67 (1884).
Bubst a no e of A Magistrate ordered sixty-nine persons to show cause why they should
Information— not give security to keep the peace, it having been reported to him by the
Joint inquiry. po]ice an(J ^ tef,8ildar 0{ the pargana in which such persons resided that they
were likely to commit breach of the peace at a religious procession which was
about to take place, and the holding of which was opposed to their religious
tenets. After an inquiry as against all the accused jointly, the Magistrate, on
the evidence of the tehsildar and a sub-inspector of police, ordered that ten of
the accused, who were said to be the " riug-lcadcrs," should enter into bonds
with sureties and the reBt should enter into their own recognizances to keep the
peace for ene year. Held, that the Magistrate's order purporting to be prepared
under section 112 of the Code did not adequately or properly disclose the sub
stance of the report or information upon which he issued his summons: the parties
were entitled to something more than a mere assertion by the Magistrate that
he had been informed that a breach of the peace was likely to occur, in order
to enable them, if they were in a position to do so, to bring evidence to rebut
the truth of such information-that the very loose statements of the tehsildar npd
the sub-inspector as to the large majority of the persons summoned, wcrequite in
sufficient to justify the wholesale order for security passed by the Magistrate —
that as the religious procession would have been over in a fortnight, it was a
most excessive exercise of power to require all the parties to give security for
S. 117.] Prevention of Ofences. 99
one year— and that the Magistrate should have dealt with the cases of the ten
alleged " ring-leaders" first, and should have required thetehsildar and sub-in
spector to give much fuller statements seriatim, and particularly as to each in
dividual man ; and as to the remaining fifty-nine, there should have been some
clear and distinct proof, affecting each of them, and warranting the inference
that such person was likely to commit a breach of the peace or to do a wrong
ful act likely to occasion a breach of the peace. Queen-Empress v. Nathu,
I. L. R.,6 All., 214 (1884).
Conversations out of court with persons, however respectable, are not legal 1 " ' 9 rm ati on
or proper material upon which Magistrates should adopt proceedings under sec- breach* of the
tion 107 or section 110 of the Criminal Procedure Code, 1882. The information peace is imrai-
to be required by a Magistrate, before issuing an order under section 112, may JJn^~truth "It
to some extent be of a hearsay and general description ; but when the party inforinat i 0 u-
to whom the order is directed appears in court in obedience thereto, the inquiry Statoment o f
must be conducted on the lines laid down in section 117. It is not because a called "as eW-1
man has a bad character, that he is therefore necessarily liable to be called upon donee,
for sureties of the peace or for good behaviour. There must be satisfactory
evidence in the one case that he has done something, or taken some step, that
indicates an intention to break the peace or that is likely to occasion a breach
of the peace ; and in the other, that he is within the category of persons men
tioned in section 110, the determination of which question must always he
guided by the considerations pointed out in Empress v Nawab (I. L. R.,
2 All., 835). A Magistrate is not competent, upon information that suggests the
likelihood of a breach of the peace, to resort to section 110 of the Code, and
it is altogether ultra vires for him to demand security for three years in such a
case. In ordering the arrest of a person under section 114 of the Code, the
Magistrate must act on recorded information ; it is not enough for him to cx
press a belief that such a course is necessary. Not only must he have " reason
to fear the commission of a breach of the peace," but " that such breach of the
peace cannot be prevented otherwise than by the immediate arrest of such
person." Empress v. Babua, I. L. R., 6 All., 132 (1883).
A witness for the defence in a case of rioting having admitted being Procedure for
present
any partat inor it,
nearthethe scene of after
Magistrate, the riot andthe
finding denied thatguilty
accused the accused took 5^*"'^"°
and without aoe°
6 peace"
further proceedings, called upon both the accused and his witness to enter in
to bonds to keep the peace for one year. Held, that this procedure was illegal
so far as the witness was concerned. The Queen v. Radar Khan, I. L. R. 5
Mad., 380 (1882).
The exercise of the power given by section 505 of the Criminal Procedure Positive evi-
Code, 1872. is not confined to cases in which positive evidence of the commis- jJjJJJJî charac-
sion of crime is forthcoming against the persons charged. In the matter of the ter.
petition o/Pedda Siva Reddi,!. L. R., 3 Mad., 238 (1881).
Held, that section 506 of the Criminal Procedure Code, 1872, solely relates A protection to
to the calling upon persons of habitually dishonest lives, and in that sense "des- 8»fet/Uofpro-*
perate and dangerous," to find security for good behaviour, as a protection to pertyf
the public against a repetition of crimes by them in which the safety of pro
perty is menaced and not the security of the person alone is jeopardised.
Where, therefore, the evidence adduced before the Magistrate did not show
that a person » as " by habit a robber, house-breaker, or thief, or a receiver of
stolen property, knowing the same to have leen stolen," but showed only that
he had been guilty of acts of violence, held, that the Magistrate could not,
under section 506 of the Code, order such person to furnish security. Ob
servations regarding the evidence on which the procedure of section 506
should be enforced. Empress of India v. Nawab, I. L. R., 2 All., 83?
1880).
IOO Prevention of Offences. [Chap. VIII.
Adjournment of An order postponing proceedings instituted under section 491 of the Code
effect* of -£i»- °^ Criminal Procedure, 1872, until the person called upon to show cause shall
charge, have established in a civil court the title claimed by him to the property dis
puted, with reference to which there is a likelihood of a breach of the peace,
amounts to a discharge. Einprets v. Dkuniram, b Cal. L. B., 366 (1879).
Evidence re- Notwithstanding the introduction into the section of the words "the
bvône Mwrui- llccused person" and " convic ion/' the provisions of section 328 of the Cri-
trate and partly minal Procedure Code, 1872, apply to an enquiry instituted under section
by another. 4',)1 with a view to enforcing the giving of security against a breach of the
peace, and in such a case, where the Magistrate, by whom only part of the
evidence has been taken, is succeeded by another Magistrate while such
enquiry is pending, the person called upon to show cause why he should not
tfive security may insist, before the latter, upon the recall and re-examination
of the witnesses whose evidence has been already taken by the former Ma
gistrate. Baroda Kant Roy and Korimuddi Moomhee, 4 Cal. L. B., 452
(1879).
Peace—Proba- The petitioner, a tehsildar, applied to the police for assistance to protect
to'lawhil «?llec- '''ln w'"'e distraining the crops of certain ryots for arrears of rent. On this
tion of rent. being reported to the Magistrate, he required the petitioner to furnish secu
rity to keep the peace on the ground that any riot which might result from
t he resistance of the ryots to the attachment of their crops would be attribu
table to his act. This order was set aside by the High Court as illegal, be
cause the Magistrate had not found that the petitioner himself was likely to
commit a breach of the peace. In the matter of Sheo Sum Lall, 3 Cal. L. B.,
280 (1878).
Bad livelihood— A person against whom proceedings for bad livelihood have been taken
Sîwisemat^0 's enticed to h-ave embodied in a charge the precise matter which the Magis-
terproved^ * trate considers established by evidences against him. It is not sufficient to
Witnesses— S11y generally that there is suspicion. He should be asked to produce his
Bal1' witnesses, or offered assistance to procure their attendance. He should be
admitted to bail. A Magistrate is not competent to refuse bail unless the
law sanctions such refusal. In the matter of Kookor Singh, 1 Cal. L B., 130
(1877).
Procedure—Evi- A proceeding under section 530, Code of Criminal Procedure, 1872, must
deuce taken^be- recorded by the Magistrate stating the grounds of his being satisfied of the
c?ern^d—Pro- existence of a dispute regarding land, &c, likely to induce a breach of the
ceeding neces- peace, before he can order a person to be retained in possession thereof. A
Magistrate cannot bind over a person to keep the peace unless he hag adjudi
cated on evidence taken in the presence of that person that a breach of the
peace is probable. If such person fails to attend on a summons duly served
a warrant should issue (section 494) ; the order for security cannot be passed
ex parte. In the matter of Okhil Chunder Bisma*, 1 Cal. L. B., 48 (1877).
High Court's The extraordinary powers conferred on the High Court by the Letters
Ktters Patent8— ^,l'ent' section 15, extend to the revising of orders passed under the Code of
Magistrate's ju- Criminal Procedure, 1872, section 518. When a Magistrate makes an order
hiWtor°nrd',r0 unêr tn'8 section, on the ground that he has received information, and is
Bondryto keep satisfied with it, no interference is possible : but when he states the nature
he peace. of the information, the High Court can see whether such information justifies
the order made. Before a prohibitory order under section 518 can be made
there ought to be information or evidence before the Magistrate that the act
prohibited was likely to cause a riot or affray, and that the stoppage of that
act would prevent such riot or affray. After summoning a person to show
cause why lie should not enter into a bond to keep the peace, the Magistrate
cannot bind over that person until he adjudicates on evidence before him that
such person is likely to commit a breach of the peace. Gothain Luchmun
Panhad Pooree v. Pohoop Narain Pooree, 24 W. B., 30 (1875).
S. n j.l Prevention of Offences. 101
In a case in which the accused was bound down to keep the peace, the Evidence—Wit;
Assistant Magistrate admitted as evidence the deposition of witnesses in cer-
tain cases in which the accused was tried on charges of being a member of an
unlawful assembly and of rioting, and was acquitted. Held, that the Assis
tant Magistrate ought not to have admitted this evidence. The Queen v. Dina
Bundhoo Roy, 24 W. R., 4 (1875).
Under the sections (491, 49G, and 497) of the Criminal Procedure Code, witnesses.
1872, relating to security for breach of the peace, the party charged is not
entitled, when sufficient time has already been given him to show cause,
and to produce his witnesses, to an adjournment in order to produce his
witnesses. In such a case, he must cither bring his witnesses with him, or
apply for summons in such time as to enable him to bring them into Court
on the day fixed. Chilian Timari v. Sukedad Khan, 23 W. R., 9 (1874).
Where a Magistrate, instead of proceeding upon evidence judicially Evidence^
taken before him sufficient to show that the accused were contemplating ?xtra,"j\l<lic'al
acts which would amount to a breach of the peace, acted upon his extra- 10
judicial knowledge, the High Court set aside his order under section 491,
Code of Criminal Procedure, 1872, requiring the accused to furnish recogni
zance. In re Raja Run Bahadoor Singh, 22 W. R., 79 (1874).
The High Court reduced the amount of recognizances required in this Recognisance—
case, as it was very much in excess of, and out of proportion to, the means Surety,
of the party accused, section 493 of the Code of Criminal Procodure, 1872,
requiring that the Magistrate should look to-.the means of the party ordered
to find sureties. Lall Mahomed v. Gibbon, 22 W. R., 74 (1874).
When parties required, ou the 1st July, to show cause on the 9th, under Security —
section 491, Code of Criminal Procedure, 1872, why they should not furnish Witnesses,
security for breach of the peace, wore served on the 5th and 6th idem, it
was held that they had not sufficient time allowed them for the purpose,
and the order requiring security was accordingly set aside. A Magistrate is
bound to assist both parties in a case under section 491 of the Code in
bringing in their witnesses by issuing summonses to attend. The Queen v.
Cheyt Singh, 22 W. R , 70 (1874).
Section 33 of the Evidence Act (I of 1872) does not justify a Magistrate, Evidence—
when proceeding under section 491 of the Code of Criminal Procedure, Keîtd*"°^ A c **
1872, in using evidence taken in a previous criminal trial in supersession of
evidence given iu the presence of the accused. The Queen v. Prosono Chun-
der Gouami, 22 W. R., 36 (1874).
To constitute a proper foundation for an order under section 491 of the Adjudication o»
Code of Criminal Procedure, 1872, it is necessary that the Magistrate should !fôt,4T ofio
adjudicate upon legal evidence before him that the person against whom complained of.
the order is made is likely to commit a breach of the peace, and the Magis
trate should give notice to the party who is to be affected by the order of
the particular conduct on his part which is complained of. Where such
notice was given, and the ground of complaint to which such notice had
reference was found by the Magistrate to be unfounded, it was held, that
the Magistrate could "not proceed to adjudicato that an entirely different
ground existed, upon which it was likely that the party charged would
commit a breach of the peace. Ram Kishore Acharjee Chowdhry v. Arip
Khan, 21 W. R., 6 (1873).
To justify an order under section 491 of the Criminal Procedure Code, j^, 0 n a b |«
1872, calling on a person to give security to keep the peace, there must be probability of »
a reasonable probability of a breach of the peace being committed, and not p^—p^siM?
merely a bare possibility of a breach of the peace. The Queen v. Abdool Huq, tlty.
20 W. R., 57 (1873).
Prevention of Offences. [Chap. VIII
Recognizance— Although a Magistrate may summon a person on credible information to

Witnesses— show cause why he should not be bound over to keep the peace, he cannot,
" 011 c' under section 491, Code of Criminal Procedure, 1872, bind over such person
to keep the peace until he has adjudicated on evidence produced before him
by the person accused. The notice to the accused should give him sufficient
t>mc to come in and to produce his evidence. The Queen v. Iaree Pershad
Singh, 20 W. B., 18 (1873).
Recognizances Where the manager of an indigo factory is obliged to enter into reeog-
<by manager as nizances to keep the peace under section 288, Code of Criminal Procedure,
tor oFtETradJ 1861> tliere is 110 reason, nor has the Magistrate any authority, to extend the
go factory)— order to the proprietor of the factory also. The statements made by both the
section"6 ""if* contentiing parties before the Magistrate must be regarded as evidence upon
(statements of which the Magistrate may act under the said section if he thinks it sufficient,
both parties)- without taking further evidence upon the subject. There is no reason why
bothLctions)- tlle Magistrate, if he is satisfied that the circumstances require it, should not
" Actual posses- make an order under section 318 as well as under section 288. By actual pos-
sis"" '("mouiing 8e88'on '8 meant, not possession by putting up a tent upon the land, nor merely
of). bodily possession, but the possession of a master by his servant, or the posses
sion of a landlord by his immediate tenant, i. e., the person who pays rent to
him (not, as in this case, the possession of a superior landlord to whom the
occupier of the land did not pay his rent), or the possession of the person who
has the property in the land by the usufructuary. J. D. Sutherland v. L.
Crowdy, 18 W. B., 11 (1872).
Enquiry (kind The kind of enquiry required to be held by a Magistrate in cases under
Bride nee— section 282, Code of Criminal Procedure, 18G1, is a full judicial enquiry, evi-
Cross-exaniina- dence being taken in the presence of the parties charged, and opportunity given
tion' for the cross-examination of witnesses. Noor Mahomed v. Nil Retun liagchee,
18 W. B., 2 (1872).
Report of 8ub- Eeport of Subordinate Magistrate, although it is credible information on
tmte-^rediole wnic1' a Magistrate of tlle district would be justified under section 280 of the
informat i o n— Code of Criminal Procedure, 1861, in issuing a summons, is not evidence on
Evidence of a which he can properly arrive at a conclusion that the accused is likely to
peace being like* cau8e a breach of the peace. Sections 287 and 288 of the Code require that
ly-Security to evidence in such a case shall be recorded, and if none is forthcoming security
keep the peace. fo koep t|le peace should not bo demanded. Reg. v. Irapa bin Runaixt, 8 Bom.
H.C., 162 (1871).
Bad livelihood YV here a person is adjudicated to be a person of notorious bad character
e"vid°e'nêH)ratiVe under section 296, Code of Criminal Procedure, 1861, after having been tried
for dacoity, the evidence taken in the trial for dacoity should not be used against
the accused with reference to the accusation under section 296, which evidence
should be taken independently. There is no rule of law which prevents the ad
mission without corroboration of the evidence of a witness who says he com
mitted breaches of the law with the accused, if the witness is not open to tho
same charge as the accused. In re Rojoni Kant Bhoomick, 13 W. B., 24
(1870).
complain t— A Magistrate is not competent, under section 282 of the Criminal
Furtter "eri- Procedure Code, 1861, to order persons to enter into bonds to keep the peace
deuce. merely npon the statement of the complainant on which the summons was
granted, and without taking further evidence, or giving the parties an
opportunity of cross-examining tho complainant. The Queen v. Nuseer-ood-
deen, N.-W. P., II. C, 1870, 461.
Adjudication as In proceeding against persons to show cause why they should not
legal evidences enter into bonds to keep the peace, it is incumbent on the Magistrate to
adjudicate judicially on evidence given before him as to the necessity for
S. 1 1 8.] Prevention of Offences, 103
taking such security. _ And in such cases the onus of proof lies upon the
party on whose complaint the summons was issued. The Queen v. Nirunjun
Singh, N.-W. P., H. C, 1870, 431.
In proceedings taken against a person to obtain security for good Examination
behaviour under section 296 of the Criminal Procedure Code, 1861, the p^™"^
examination of the witnesses must be taken in the presence of the accused cusod.
person, who should be permitted to cross-examine them. The Queen v.
Shunkur, N.-W. P., H. C, 1870, 406.
Held (Q lover, J., dissenting) that, on the appearance of a party sum- Oiau probanH~
moned under section 282 of the Code of Criminal Procedure, 1861, it is in- Adjudication,
cuinbent on the Magistrate, before taking a bond from him for the preserv
ation of the peace, to adjudicate judicially on evidence given before him
as to the necessity for taking security. The onus in such case is on the
party on whose complaint the summons was issued. A. D. Dunne v. Hem
Chunder Choiodhry ,12 W. R., 60 (1869).
A Magistrate has no power to make an order that an accused person Adjudication
should enter into a bond to keep the peace until after an adjudication that it raî^nce.'0*
is necessary, for the preservation of the peace, to take a bond from him, and
until he is satisfied on that point—unless there is an admission by the
party against whom the order is to be made. The Queen v. Lull Beharee
Singh, 11 VV. R., 50(1869).
A statement by a private person not upon oath or solemn affirmation Credible infpr-
is not credible information, upon which alone a Magistrate should issue a Sj10|nTOtiga-
summons under section 282 of the Code of Criminal Procedure, 1861. tion—Legul evi-
Seinble. - A report by a Subordinate Magistrate of facts within his knowledge dence.
would be credible information upon which such summons might issue, but
would not be sufficient ground for a final adjudication under section 288 of
the Code. In order to warrant an adjudication under section 288, there
should be a judicial investigation, and the order should be passed upon
legal evidence duly taken and recorded. Reg. v. Jivanji Limji, 6 Bom.,
H. C., 1 (1869).
118. (7) If, upon suchinquiry, it is proved that it is necessary order to Rive
for keeping the peace or maintaining good behaviour, as the case ,ecuirty-
may be, that the person in respect of whom the inquiry is made
should execute a bond, with or without sureties, the Magistrate
shall make an order accordingly :
Provided —
first, that no person shall be ordered to give security of a
nature different from, or of an amount larger than,
or for a period longer than, that specifiedin the order
made under section 112 :
secondly, that the amount of every bond shall be- fixed *with
due regard to the circumstances of the case and shall
not be excessive :
thirdly, that, when the person in respect of whom the inquiry
is made is a minor, the bond shall be executed only
by his sureties.
104 Frevention of Offences. [Chap. VIII.
High Court's ^ Magistrate ordered the accused to execute a bond for Rs. 5( 0 for his
power o( inter- good behaviour for one year, and to furnish two sureties for the like amount,
ference when ^ *£ue accused failed to furnish the required security, and was sent to prison. The
security0?" ex- High Court, being of opinion that the amount of the required security was
cessiye-Maf?is- excessive, and that the Magistrate had not exercised a proper discretion in the
tfoi'0 to be "pro- matter, interfered in the exercise of its revisional jurisdiction and reduced the
perly exercised amount. Queen-Empress v. Rama, I. L. R., 16 Bom., 372 (1892).
Previous eon- The object of taking security for good behaviour from a person is Bolely
victions—
"K t0 8ecure his good behaviour in future. The mere record of previous convic-
Object of secu tions, on account of which the person has undergone punishment, does not
rity. satisfy the requirements of sections 110, 117 and 118 of the Code of Criminal
Procedure, 1882, and it is wrong to use these provisions so as to add to the
punishment for past offences. In re Raja Valatl Ilussen Saheb, I. L, R.,
10 Bom., 174 (1885).
Appeal— No appeal lies to the High Court from an order passed by a District Magis-
Securitv trate nn(\er the provisions of section 123 of the Criminal Procedure Code,
honour. °~ 1882, and on reforenoe by the Magistrate contirmod by the Sessions Judge
under the same section, requiring a person to be detainod in prison, until he
should provido security for his good behaviour. Chund Khan v. The Empress,
I. L. R., 9 CaL, 878 (1883).
Deposit of cash The powers given by sections 505 and 50G of the Code of Criminal Proee-
ritybond'^for dure, 1872, should be exercised in the extreme discretion ; the former of these
good behaviour, sections is not intended to apply to persons of il by no moans a reputable cha
racter." An order requiring persons to deposit cash in lieu of entering into a
bond as security for their future good behaviour is bad in law. The Empress
v. Kala Chand Dass, I. L. R., 6 CaL, 14 (1880).
Grounds upon On a requisition from the High Court a Magistrate is bound to state the
otûHtTuxod. gr0U11('s ul)ou which lie fixod the amount of security. A person from whom
" a security for good behaviour is demande 1 should have a fair chance afforded
him to comply with the require 1 conditions of security. The Empress v.
Dedar Sircar, I. L. R., 2 CaL, 384 (1877).
Object of The object of Chapter XXXVIII of the Code of Criminal Procedure, 1872,
XXX VIII of i:1 the PreveIltion not the punishment of crime. When a charge of a specific
Act X of 1872. offence is under trial, proceedings uuder Chapter XXXVIII should not be
instituted. In re Umbica ProsJuui, 1 CaL, L. R., 2G8 (1877).
Bad livelihood— \ person against whom proceedings for bad livelihood have been taken
^precise m™ 's entitled to have embodied in a charge the precise matter which the Magis-
ter pro v e d— trate considers established by evidence against him. It is not sufficient to say
Witn esses- generally that there is suspicion. He should bo asked to produce his wit
nesses, or offered assistance to procure their attendance. Ho should be admitted
to bail. A Magistrate is not competent to refuse bail unless the law sanctions
such refusal. In the matter of Koolcor Simjh, 1 Cal. L. R., 130 (1877).
In a case of apprehended breach of peace, tho Magistrate should not bind
P^werof°?iigh the parties in sums of money aggregating on the whole to Rs G0,000 or
Court—"Mate- upwards. The High Court quashed the order, holding that it was altogether
rial error." unreasonable. In re Jugijut Chander Chuckerbutty, I. L. R., 2 Cal., 110 ^1870).
Adjudication on To constitute a proper foundation for an order under section 491 of the
ImtoI evidence- (j0j0 0f Criminal Procedure, 1872, it is necessary that the Magistrate should
pwtic.dar'con- adjudicate upon legal evidence before him that the person against whom the
duct complain- order is made is likely to commit a breach of the peace, and the Magistrate
edo'' should give notice to the party who is to be affected by the order of the
particular conduct on his part which is complained of. Where such notice was
given, and the ground of complaiut to which such notice had reference was
Ss. 1 19-123.] Prevention of Offences.
found by the Magistrate to bo unfounded, it was held, that the Magistrate

could not proceed to adjudicate that an entirely different ground existed, upon
which it was likely that the party charged would commit a breach of the
peace. Ram Kishore Ackarjee Chowdkry v. Arip Khan, 21 W. R., 6 (1873).
It is illegal and contrary to the provisions of section 282, Code of Crimi- Breach of the
nal Procedure, 1861, to take recognizances from one person in order to prevent E|J^Jjjkcog-
another from committing a breach of the peace. Bam Coomar Banerjee v. njjanoea from
Bujah Gopal Singh Deb, 17 W. H., 51 (1872). another.
Orders passed by Sessions Judges in confirmation of orders by Magis- Sfj"1^1
trates calling upon parties to give security for their good behaviour, though security ' 'for
not subject to appeal, are open to revision by the High Court under section good behaviour.
401, Code of Criminal Procedure, 1861. With reference to section 301 and
409, after the expiration of tho term of confinement in default of security, a
second security cannot bo demanded except upon some new proof of bad live
lihood or that a person is not capable of following an honest calling, hi re
Juswunt Singh, 6 W. P.., 18 (186(5).
119. If, on an inquiry under section 117, it is not proved ^SJ^tator-
that it is necessary for keeping the peace or maintaining good med afraimt.
behaviour, as tli3 case in ly be, that the person in respect of whom
the inquiry is made should execute a bond, the Magistrate shall
make an entry on the record to that effect, and, if such person is
in custody only for th ) purposes of the inquiry, shall release him,
or, if such person is not in custody, shall discharge him.
C.—Proceedings in oil cases subsequent to Order to

furnish Security.
120. (7) If any person in respect of whom an order re- m°mtmo?Cperiod
quiring security is made under section 106 or section 118, is, at the for which noon
time such order is made, sentenced to, or undergoing a sentence " J " reqm
of, imprisonment, the period for which such security is required
shall commence on the expiration of such sentence.
(2) In other cases such period shall commence on the date
of such order unless the Magistrate, for sufficient reason, fixes a
later date.
121- The bond to be executed by any such person shall ^^ntso'
bind him to keep the peace or to be of good behaviour, as the
case may be, and in the latter case tho commission or attempt to
commit/or the abetment of, any offence punishable with imprison
ment, wherever it may be committed, is a breach of the bond.
122. A Magistrate may refuse to accept any surety offer- Power to reject
ed under this chapter, on the ground that, for reasons to be recor- ,ureties'
ded by the Magistrate, such surety is an unfit person.
123. (/) If any person ordered to give security under sec- .imprisonment
tion 100 or section 118 does not give such security on or before the iecurit"!'" °'
date on which the period for which such security is to be given,
commences, he shall, except in the case next hereinafter men
tioned, be committed to prison, or, if he is already in prison, be
lo6 Prevention of Offences, [Chap. VII I.
detained in prison until such period expires or until within such

period he gives the security to the Court or Magistrate who made
the ordtr requiring it.
whento'tw'kid ^ When such person has been ordered by a Magistrate to
before h i* h give security for a period exceeding one year, such Magistrate shall,
ofSenfon! if such person does not give such security as aforesaid, issue a war
rant directing him to ba detained in prison pending the orders of
the Sessions Judge, or, if such Magistrate is a Presidency Magis
trate, pending the orders of the High Court ; and the proceedings
shall be laid, as soon as conveniently may be, before such Court.
(3) Such Court, after examining such proceedings and re

quiring from the Magistrate any further information or evidence
which it thinks necessary, may pass such order on the case as it
thinks fit :
Provided that the period (if any) for which any person is im
prisoned for failure to give security, shall not exceed three years.
(4) If the security is tendered to the officer in charge of the

jail, he shall forthwith refer the matter to the Court or Magistrate
who made the order, and shall await the orders of such Court or
Magistrate.
Kind of impri- O5) Imprisonment for failure to give security for keeping the
sonmcnt. peace shall be simple.
(6) Imprisonment for failure to give security for good be
haviour may be rigorous or simple as the Court or Magistrate in
each case directs.
For forms oj icarrunts of cowmittnent, tee schedule V, A'o«. 18
and 14.
[Omission to np- [225 A (P. C). Whoever, being a public servant legally bound as
fera^Mo'f^M sucn public servant to apprehend, or to keep in confinement, any person in
on part of public any case not provided for in section 221, section 222, or section 228, or
5o7"tftanrf2 in »"y other law for the time being in force, omits to apprehend that per-
provided for.] SOn or suffers him to escape from confinement, shall be punished—
(d) if he does so intentionally, with imprisonment of either descrip
tion for a term which may extend to three years, or with fine,
or with both ; and
(b) if he does so negligently, with simple imprisonment for a term
which may extend to two years, or with fine, or with both.]
P wer of Ses- Under section 123of the Code of Criminal Procedure, 1 882, u Sessions Judge
sions Judge to is not competent to remand a case for further inquiry. Such evidence us he
remand—Condi- may require he must take himself. No conditions and limitations can be
u'tTo'ns imposed upon persons ordered to give security under section 118 of the Code.
Jhojha Siiujh v. Queen-Empress, I. L. R., 24 (Jul., 155 (18i>6).
No appeal lies to the High Court from an order passed by a District Magis- Appeal—High
trate under the provisions of section 123 of the Criminal Procedure Code, 1882, Court'
and on reference by the Magistrate confirmed by the Sessions Judge under the
same section, requiring a person to be detained in prison until he should provide
security for his good behaviour. Chand Khan v. The Empress, I. L. R., 9 Cal.,
878 (1883).
Where a Sessions Judge has, under section 295 of the Code of Criminal Record of in-
Procedure, 1872, called for the record of an inferior Court, he is, before refer- t^J'"1l'lâ"i"llr ^
ring the case to the High Court for orders, bound to call upon the inferior Court order p» 'ssed—
for an explanation of the order passed, and should submit such explanation, Indefinite
together with the rest of the record, to the High Court. An order directing an p^fjjSnm°n t "iti
accused " to be imprisoned until he gives security," is bad ; a definite period default of
for such imprisonment, not exceeding one year, should be stated in the order. ■eciirUv-
Mailamili Fakir v. Taripulla Pramanik, I. L R., 8 Cal., 644 (1882).
A first-class Deputy Magistrate decided that a bond for keeping the peace Appeal-Firs t-
had been forfeited, and proceeding under section 502 of the Criminal Procedure jjjjjj _ ^ j*,1* I
Code, 1872, levied the penalty. An appeal was entertained from this order by 8 i 0 n by High
the Sessions Judge of South Arcot, and the order was reversed. A petition Court,
was then presented under section 294 of the Code, praying the High Court to
reverse the order of the Sessions Judge. Held, that the order of the first-
class Deputy Magistrate was not open to appeal. The effect of the penultimato
clause of section 502 considered. Anantha Charri v. Anantha Charri, I.
L. R., 2 Mad., 169 (1881).
A Magistrate is not justified in forfeiting a recognizance under section proceedings^n
502 of the Code of Criminal Procedure, 1872, unless the party charged with forfeit u re o f
a breach of the peace has had an opportunity of cross-examining the wituesses, ' ewwn'B"'0*.
upon whose evidence the rule to show cause why the recognizance should not
be forfeited, has been issued. The Empress v. Nobin Chunder Dull, I. L. R.,
4 Cal., (F. B.) 865, U879).
On the 20th of April, 1877,4 was bound down to keep the peace for forfXr?™-
one year. On the 14th of January, 1878, ho was convicted of an offence and Security to keep
sentenced therefor to fine and imprisonment, but no order was made for }l^j11pca<0,(~rTO>
the recovery of the penalty, though the Magistrate knew that the recogni- o^,"^ a°n c e^-'
zance had been forfeited. On the 2nd of April, 1878, the Magistrate, at the Penalty,
instance of a third party, called upon A to show cause why the penalty of
the recognizance should not be paid, and a warrant for its recovery was
issued on the 6th of June, 1878. Held, that the warrant must be quashed,
on the ground that the Magistrate having inflicted a sentence of fine and
imprisonment with the knowledge that the recognizance was forfeited, he
was not competent to inflict a further penalty on a re-consideration of the
circumstances. In the matter of Parbulti Churn Bose, 3 Cal. L. R., 40G
(1878).
When a Magistrate has before him the fact that a person convicted by jS^jJu™"00 ~
him of an offence attended with violence was under recognizance to keep
the peace, and does not nevertheless proceed to forfeit such recognizance, it
must be held that he thought it unnecessary to do so. Proceedings taken
after the lapse of a considerable period are bad and contrary to the intention
of the law. In re Ram Chunder Lalla, 1 Cal. L. R., 134 (1877).
In making an order for security to keep the peace under section 505, Surety—Con-
Code of Criminal Procedure, 1872, a Magistrate has no right to impose an dltlon-
arbitrary condition not essential to restrain a party from the infringement
of the law, e. g., a condition requiring the accused to furnish two sureties,
being persons of respectability and substance not related to him, and resid
ing within one mile of his house. The ground on which a Magistrate has
power to refuse to accept any surety under section 516 must be a valid and
reasonable ground. Naruin Soolooddhee, 22 W. R-, 37 (1874).
io8 Prevention of Offences. [Chap. VIII.
izances A person was bound down under recognizances to keep the peace towards
itiire. ay jjer Maje8ty'g subjects for a period of one year. Some time afterwards he
wrongfully confined and extorted a sum of money from two ryots, who
were supposed to have committed theft on his lands, he being for such
offence fined, and his recognizances forfeited. Held, that the matter ought
to have ended with the fine. For the ryots not having offered any resist
ance, no breach of the peace took place, and the amount of the recognizances
could not be taken, Zearuddin Uowladar, 19 W. K., 48 (1873).
Recognizance— Where a person has been bound down by recognizance not to commit
lorfeiture. ft breach, of the peace, the amount of the recognizance cannot be recovered
from him if he is guilly of an offence, such as theft, which does not amount
to a breach of the pence, or which in not likely to occasion a breach of the
peace. Haran Chunder Hoy, 18 W. It., 03 (1872).
Power to release 124. (/) Whenever the District Magistrate or a Chief
î1ed"*or tHifini? Presidency Magistrate is of opinion that any person imprisoned
to i?ive security. for failing t > give security under this chapter, whether by the
order of such Magistrate or that of his predecessor in office, or
of some subordinate Magistrate, may be released without hazard
to the community or to any other person, he may order such
person to be discharged.
(2) Whenever any person has been imprisoned for failing
to giv3 security under this chapter, the Chief Presidency or
District Magistrate may (unless the order has been made by
some Court superior to his own) make an order reducing the
amount of the security or the number of sureties or the time for
which security has been required.
(3) Whenever the District Magistrate or a Chief Presiden
cy Magistrate is of opinion that any person imprisoned for fail
ing to give security under this chapter as ordered by the Court
of Session or High Court may be released without hazard to the
community, such Magistrate shall make an immediate report of
the case for the orders of the Court of Session or High Court, as
the case may be, and such Court may, if it thinks fit, order such
person to be discharged.
For form oj warrant, see schedule V, A'o. 15.
Power of Oi»- 125. The Chief Presidency or District Magistrate may at

trict MwHtrate anv time, for sufficient reasons to be recorded in writing, cancel
to cancel any » _ -* , . i i l • •
bond for keep- any bond for keeping the peace or tor good behaviour executed
fro ioou^brfia- under this chapter by order of any Court in his district not
viour. superior t > his Court.
for form of warrant, see schedule V, No 15.
Discharge of 12«« f) A">' surety for the peaceable conduct or good
sureties. behaviour of another person may at any time apply to a Presi
dency Magistrate, District Magistrate, Subdivtsional Magistrate
or Magistrate of the first-class to cancel any bond executeu under
this chapter within the local limits of his jurisdiction.
Ss, 124-127.] Prevention of Offences. 109
(2) On such application being made, the Magistrate shall

issue his summons or warrant, as he thinks fit, requiring the
person for whom such surety is bound to appear or to be brought
before him.
(3) When such person appears or is brought before the
Magistrate, such Magistrate shall cancel the bond, and shall order
such person to give, for the unexpired portion of the term of such
bond, fresh security of the same description as the original
security. Every such order shall, for the purposes of sections
121, 122, 123 and 124, be deemed to be an order made under
section 106 or section 118, as the case may be.
CHAPTER IX.
Unlawful Assemblies.
127. (/) Any Magistrate or officer in charge of a police- Assembly to
,,. j ifi 11 0 11 disperse on rein
station may command any unlawful assembly, or any assembly mand o( Ma-
of five or more persons likely to cause a disturbance of the public police officer. °r
peace to disperse ; and it shall thereupon be the duty of the
members of such assembly to disperse accordingly.
[141 (P. C). An assembly of five or more persons is designated j^,'1^*'-,"1
an "unlawful assembly," if the common object of the persons composing
that assembly is —
First.—To overawe by criminal force, or show of criminal force,
the Legislative or Executive Government of India, or the
Government of any Presidency, or any Lieutenant-Gover
nor, or any public servant, in the exercise of the lawful
power of such public servant ; or,
Second.—To resist the execution of any law, or of any legal pro
cess; or,
Third,—To commit any mischief or criminal trespass, or other
offence ; or,
Fourth.—By means of criminal force, or show of criminal force,
to any person, to take or obtain possession of any property,
or to deprive any person of the enjoyment of a right of
way, or of the use of water, or other incorporeal right
of which he is in possession or enjoyment, or to enforce any
right or supposed right ; or,
Fifth.—By means of criminal force, or show of criminal force, to
compel any person to do what he is not legally bound to
do, or omit to do what he is legally entitled to do.
Explanation,—An assembly which was not unlawful when it assem
bled, may subsequently become an unlawful assembly.]
no Prevention of Offences. [Chap. IX.
WoUnauSaw- C142 (P< C0- Whoever, being aware of facts which render any
ful assembly.] assembly an unlawful assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful assembly.]
[Joining.prcon- [145 (P. C). Whoever joins, or continues in, an unlawful assem-
ir?tawfuiM»cmn- ^ kll0wing tIlat swell unlawful assembly has been commanded in the
biy. know in r manner prescribed by law to disperse, shall be punished with imprison-
wmmanded to n\ent of either description for a term which may extend to two years, or
disperse.] with fine or with both.]
[Knowingly join- [151 (P.O.). Whoever knowingly joins, or continues in, any
MsemWy assembly of five or more persons likely to cause a disturbance of the
of five or more public peace, after such assembly has been lawfully commanded to dis-
litsTOirec°Itcom- perse, shall be punished with imprisonment of either description for a
manded
perse] to dis- tortu which mayJ extend to six months, or with fine, or with both,
Explanation.—If the assembly is an unlawful assembly within the
meaning of section 141, the offender will be punishable under section
145.
Officers supe- An order given by an officer superior in rank to an officer in charge of
rior to' officers police-stations commanding an assembly of five or more persons likely to
in ehanre of a cause a disturbance of the public pence to disperse, is a lawful order within
-Commaniui°to the meaning of section 480 of the Code of Criminal Procedure, 1872. The
disperse -Lega- opinions of policemen as to whether certain acts would lead to a breach of
derÊvidenco- tne Peace >s relevant ; and the Court itself may properly look to the surround-
Opinions of po- ing circumstances to enable it to form an opinion on the subject. Empress
licemen. v. Tucker, Norman and Thompson, I. L. R., 7 Bom., 42 (1882).
Usepf civil force 128. If, upon being so commanded, any such assembly
to disperse. ftoes no^ dispose, or if, without being so commanded, it conducts
itself in such a manner as to show a determination not to disperse,
any Magistrate or officer in charge of a police-station, whether
within or without the presidency-towns, may proceed to disperse
such assembly by force, and may require the assistance of any
male person, not being an officer or soldier in Her Majesty's Army
or a volunteer enrolled under the Indian Volunteers Act, * 18b'9,
and acting as such for the purpose of dispersing such assembly,
and, if necessary, arresting and confining the persons who form
part of it in order to disperse such assembly or that they may
be punished according to law.
[Police to keep [31 (Act V of 1861). It shall be the duty of the police to keep
ro?ds 4c fub'iC or<êr on tne public roads, and in the public streets, thoroughfares, ghats,
and landing-places, and at all other places of public resort, and to pre
vent obstructions on the occasions of assemblies and processions on the
public roads and in the public streets, or in the neighbourhood of places
of worship, during the time of public worship, and in any case when any
road, street, thoroughfare, ghat, or landing-place, may be thronged, or
may be liable to be obstructed,]
• Act No. XX of 1S69.
Ss. 128-132.] Prevention of OJences. tit
[24 (Act XX of I860). Any member of such corps, whenever he ^TdtaJy*"

is on duty, may prevent any disturbance of the- public peace, and dis- bonce of the
perse any persons whom he may find assembled together to the number publ,c peare ^
of five or more without reasonable cause between sunset and sunrise in KwMîSwS"
any public street, thoroughfare, or other public place in which such mem- •>•>«•]
ber of the said corps may be in the discharge of his duty,
and mav also apprehend any person reasonably suspected of hav- [To apprchond
ing committed, or being about to commit, any offence against the ed persons.]
State, or of having abetted within the meaning of the Indian Penal
Code, or being about to abet, any other person, in the commission of
such offence ; and deliver him over to some police-officer.]
129. If any such assembly cannot be otherwise dispersed, Uso of military
and if it is necessary for the public security that it should be dis- ,orce'
persed, the Magistrate of highest rank who is present may cause
it to be dispersed by military force.
130. (/) When a Magistrate determ'nes to disperse any Duty of officer
such nssembly by military force, he may require any commis- ^p,',J^"'ired
sioned or non-commissioned officer in command of any soldiers in JSjgjjf^j6.
Her Majesty's Army or of any volunteers enrolled under the aembiy.
Indian Volunteers Act,* 186!), to disperse such assembly by mili
tary force, and to arrest and confine such persons f >rming p:irt
of it as the Magistrate may direct, or as it may be necessary to
arrest and c inline in order to disperse the assembly, or to have
them punished according to law.
{2) Every such officer shall obey such requisition in such
manner as lie thinks fit ; but in so doing he shall use as little
force, and do as little injury t > person and property, as may be
c insistent with dispersing the assembly and arresting and detain
ing such persons.
13X. When the public security is manifestly endangered by Powerof eom-
anysuch assembly, and when no Magistrate cm be communicated SrTofficlr? to
with, any commissioned officer of Her Majesty's Army m ly dis- {Jjy?0™0 "Mem"
perse such assembly by military force, and may arrest and confine
any persons forming part of it, in order to disperse such assembly,
or that tiny may be punished according to law ; but if, while he
is acting under this section, it becomes practicable for him to
communicate with a Magistrate he shall do so, and shall thence
forward obey the instructions of the Magistrate as to whether he
shall or shall not continue such action.
13Z. No prosecution against any person for any act pur- protection
porting to be done under this chapter shall be instituted in nny 3m te'Hio'ti
Criminal
. .,Court,, except
r with the sanctio 1 of the Governor- General done under this
chapter.
in Council ; and—
(it) no Magistrate or police-officer acting under this chapter
in good faith,
• Act No. XX of ;
112 Prevention of 0§ences. [Chap. X.
(6) no officer acting under section 131 in good faith,

(c) no person doing any act in good faith, in compliance
with a requisition under section 128 or section 130, and
(rf) no inferior officer, or soldier, or volunteer, doing any act
in obedience to any order which he was b >und to obey,
shall be deemed t) have thereby committed an offence.
f Good faith."] [52 (P. C). Nothing is said to be done or believed in good faith,
which is done or believed without due care and attention.]
CHAPTER X.
Public Nuisances.
conditional 133. (7) Whenever a District Magistrate, a Subdivjsional
order (or remo- Magistrate or. when empowered bv the Local Government in this
val of nuisance. . , o '. . « n , t ., . .
behalf, a Magistrate of the first-class, considers, on receiving a
police-report or other information, and on taking such evidence
(if any) as he thinks fit,
that any unlawful obstruction or nuisance should bo removed
from any way, river or channel which is or may be lawfully used
by the public, or from any public p'ace, or
that any trade or occupation, or the keeping of any goods or
merchandise, by reason of its being injurious to the healt'i or phy
sical comfort of the community, should be suppressed or removed
or prohibited, or
that the construction of any building, or the disposal of any
substance as likely to occasion conflagration or explosion, should
be prevented or stopped, or
that any building is in such a condition that it is likely to fall
and thereby cause injury to persons living or cirrying on business
in the neighbourhood or passing by, and that in consequence its
removal, repair or support is necessary, or
that any tauk, well or excavation adjacent to any such way or
public place should be fenced in such a manner as to prevent
danger arising to the public,
such Magistrate may make a conditional order requiring the
person causing such obstruction or nuisance, or carrying on such
trade or occupation, or keeping any such goods or merchandise,
or owning, possessing or controlling such building, substance, tank,
well or excavation, within a time to be fixed in the order,
to remove such obstruction or nuisance ; or
to suppress or remove such trade or occupation ; or

to remove such goods or merchandise ; or
to prevent or stop the construction of such building ; or
to remove, repair or support it ; or
to alter tbe disposal of such substance ; or
to fence such tank, well or excavation, as the case may be ; or
to appear before himself or some other Magistrate of the first
or second-class, at a time and place to be fixed by the
order, and move to have the order set aside or modified
in manner hereinafter provided.
(2) No order duly made by a Magistrate under this section
shall be called in question in any Civil Court.
Explanation.— "A public place " includes also property b3long-
ing to the State, camping grounds and grounds left unoccupied for
sanitary and recreative purposes.
For form of order for the removal of nuisance, see schedule V,
No. 16.
In a complaint for alleged obstruction of a public thoroughfare, the Ob»truction to
Magistrate, after making preliminary enquiries, was of opinion that the Further h
alleged way was not a public thoroughfare, and refused to take action under enquiry,
section 133 of the Code of Criminal Procedure, 1882. The Sessions Judge,
being of opinion that the Magistrate should have gone on with the case,
directed a further enquiry under section 133. Such enquiry was held, and
the Magistrate, without taking evidence in support of the complaint, made his
conditional order under section 133 absolute under section 137. Held, that
the order of the Sessions Judge, directing a further enquiry, was ultra vires,
there being no section of the Code under which an order for further enquiry
could be made in the case ; section 437 having no application. Held, also,
that the Magistrate, before whom the petitioner showed cause, should not
have made his conditional order under section 133 absolute without taking
evidence upon the matter of the complaint: the words "evidence in the
matter" meaning " in the matter of the complaint," and not simply evidence
which the opposite party might offer. Srinath Roy v. Ainaddi Haider, I. L. R.,
24 Cal., 395 (1897).
In the nomination of those members of the jury, the nomination of whom Nomination ot
devolves upon the Magistrate under the provisions of section 138 of theCrimi- jury by Mngi«-
nal Procedure Code, 1882, it is his duty to exercise his own independent dis- ofdaiui." "
cretion, and not meroly co accept persons who may be put forward by the
party opposed to the applicant. A jury constituted in violation of the pro
visions of section 138 is not legally constituted, and is incapable of making
a legally binding award. Where a claim is raised to the land in respect of
which proceedings are taken, the Magistrate before proceeding further should
satisfy himself as to the bona fides of the claim. Upendra Nath Bhuttachar-
jee v. Khitish Chandra Bhuttacharjee, I. L. K., 23 Cal., 499 (1896).
One-JT-R having been ordered by a Magistrate under fraction 133 of order for remov-
the Code of Criminal Procedure, 1882, to remove an alleged obstruction, ap- al of obstrut-
plied for a jury. Five jurors were chosen, who, having examined the place nent"o* jury'to
in dispute, proceeded without consultation to deliver separate and independent con s i d .1 r the
opinions. The verdict of the majority was in favour of upholding the Magis- ^™ucb10order.
trate's order. The Magistrate, however, discharged his order. On reference
8
114 Prevention of Offences. [Chap. X.
by the Sessions Judge, under section 438 of the Code, it was held that the
last order of the Magistrate should be set aside and the case remanded for
consideration by afresh jury. Queen-Empress v.Khushali Ram, I. L.
18 All., 158 (1895).
Removal ofob* In a proceeding under section 133 of the Criminal Procedure Code, 1882'
m'Su"0" ôr "ie PurP08C of compelling the removal of an obstruction from a public
Questioned title wavi where a bona fide question as to the way being public is raised, there is
—Bona ftdti of no jurisdiction to make an order under the section, and the question should be
Sight of Magis"- for determination by the Civil Court. To have this effect, however, the
trate to enquire claim must be bona fide and not a mere pretence to oust jurisdiction, and it
into—Juristic- jg for t|le Magistrate to say -whether the claim be bona fide or not. Queen-
Bon- Empress v. Bissessur Sahu, I. L. K., 17 Cal., 562 (1890;.
Penal Code, A Magistrate made an order under section 133 of the Code of Criminal Pro-
Service oMiotiee ceûro> 1882, requiring N to fence a certain well in a public street or to appear
of orders— before him and move to have the order set aside ; a copy of this order was
Disoijedienco affixed to the house of N, but he did not appear. The Magistrate then adop-
to order. tej tn(J procejure prescribed by sections 136, 140, and made an order requiring
N to fence the well by a certain date. N who was personally served with
notice of the above order did not comply with it. The Magistrate then sanc
tioned the prosecution of N under section 188 of the Penal Code. N ap
peared and produced evidence to prove that he was not liable to fence the well :
Held, that the accused was guilty of the offence of disobedience to an order
duly promulgated by a public servant and was not entitled to go behind the
order and show that it was one which ought not to have been made. The
inodo of service of notice of an order under section 133 considered. Queen-
Empress v. Narayana, I. L. R., 12 Mad., 475 (1889).
Disobeying or • A District Magistrate, by an order made under section 144 of the Crimi-
»eVvai'itP--TradernaI Procedure Code, 1882, after stating that it appeared that one "tfCS
at Mt—Order has recently established a hdt at S in the vicinity of K, an old-established hdt,
prohibiting^ an(] heId it 0n the same days, and that in consequence of the establishment of
io mg o .ûe new jyft an(j j]ie encleavours made to induce or force people to frequent
the new hdt instead of the old one, a serious breach of the peace or riots are
imminent," ordered " that the said O C S and all other persons abstain from
holding such hdt " on those days. The order was duly made and promulgated,
but not strictly in accordance with section 134 of the Code, and the orders of
Government made thereunder. Notwithstanding the order one P C A was
found exposing goods for sale as a trader at the hdt on one of the prohibited
days, and he was thereupon charged with disobeying the order of the Magis
trate, and convicted of an offence under section 188 of the Penal Code. Held,
that the conviction was bad, as P C A did not come within the description of
the persons intended by the order to be prohibited from "holding " the hdt,
which referred to "holding " as owner or manager, not as a trader. Held, also,
that the terms of section 134 of the Code, and the notification made by Govern
ment thereunder as to promulgation and issue of an order, are directory, but
an omission to follow strictly such direction, though it is an irregularity, docs
not invalidate the order. Where therefore it is shown that the order has been
brought to the actual knowledge of the person sought to be affected by it,
such omission does not prevent the case coming within section 188 of the
Penal Code. Parbutty Charan v. Queen-Empress, I. L. R., 16 Cal., 9 (1888).
Obstruction to The mere assertion of a claim of title made without reasonable ground, or
oftitie-i.iiw/fi« honest belief in it or honest intention to support it, will not oust a Criminal
of title -RUrht Court of its jurisdiction under sections 133—137 of the Criminal Procedure
"n^Tre'toto- Code' 1?82, In proceedings under section 133 of the Code with reference to
Jurisdiction. obstructions to public ways it is open to the Magistrate to enquire into the
bona fides of the claim ; and where he decides against its bona fides he must
state reasons for his decision, which will be subject to revision by the High
Court. Luckhee Narain Banerjee v. Ram Kumar Mukherjee, I. L. R., 15
Cal., 564 (1888).
An owner of land has a right to bring a suit under section 42 of the 'Jj"t (le~0f
Specific Relief Act against any one of the public who formally claims to use 1877), section a
such lands as a public road, and who thereby has endangered the title of the —Obstruction to
owner. To such a suit it is unnecessary to make the Secretary of State a party.
Such a suit is not barred by an order of a Criminal Court under section 137
of the Criminal Procedure Code, 1882. Chuni Lall v. Ram Kishen Sahu, I.
L. R., 15 Cal., 460 (1888).
Under section 137 of the Criminal Procedure Code, 1882, a Magistrate is ™u°f 8/™a£0s
bound to take evidence as a basis for the order he has made. Where a Magis- evidence,
trate had, without taking any evidence, ordered a privy to be removed, and it
appeared that in so doing he had acted solely on his own opinion that the privy
was a nuisance : Held, that he acted illegally and ultra vires. In re Mahadaji
Sadashiv Tilak, I. L. R., 11 Bom., 375 (1887).
On the 6th of July, 1882, the Joint-Magistrate of Krishnagar, on a com- J^J™™^,',,.
plaint made by A , ordered B to demolish a cowshed which he had built some ]ic way—Suit
months previously, the land on which the cowshed had been built being part 'or declaration of
of a public way. Thereupon B brought a suit against A for a declaration of J^'on'of posses"
his right to enjoy the land as his private property and for confirmation of pos- sion-Cnusc of
session. The plaint did not allege that B, in causing the Magistrate to initiate ■«'*•*>■
proceedings against A, had been actuated by malicious motives and had acted
with the intention of wrongfully injuring the plaintiff. Held, that the Buit
would not lie. Khoda Baksh Mumlul v. Monglal, I L. R., 14 Cal., 60 (1886).
When a minority of a jury appointed under the provisions of section 113 Public, way—
of the Criminal Procedure Code, 1882, do not act, the Magistrate cannot pro- Jitu!s^"cû"r*I*JO'
ceed under that section upon a report submitted by the majority. Durga n >aTy'
Charan Das v. Sashi Bhutan Guho, I. L. R., 13 Cal., 275 (1886).
The powers given by section 133 and the following sections of the Crimi- Removal ol
nal Procedure Code, 1882, as to the removal of obstructions in public ways, are p,',*,*™0'^"— '"
not intended to be exercised when there is a bona fide dispute as to the exis- question*' of
tence of the public right ; the procedure under those sections not contemplating tlt,e-
an enquiry into disputed questions of title. Lai Allah v. Nazir Khalashi, I.
L R., 12 Cal , 696 (1886).
A Subdivisional Magistrate having made a conditional order, under sec- Nuisanco-
tion 133 of the Code of Criminal Procedure, 1882, against a person to abate a Socoud cln»s
nuisance or appear and show cause before a second-class Magistrate why the Ml""s,nu'-
order should not be enforced, the said person appeared as directed and the order
was made absolute under section 137. The second-class Magistrate then issued
a notice and order under section 140, requiring the nuisance to lie abated with
in a certain date. The District Magistrate having referred the case on the
ground that the second-class Magistrate had no jurisdiction to pass final orders
in such case : Held, that the order was not illegal. In re Narasimha, I. L.
H., !) Mad., 201 (1886).
An application was made under section 133 of the Criminal Procedure Obstruction—
Code, 1882, for the removal of an obstruction in a public thoroughfare, but J™,vi™n,el,orno
after a personal local inspection by the Magistrate, and without any evidence bar to further
being taken, the parties were referred to a civil suit, and the order was refused, enquiry,
the Magistrate holding that the way was not a public way. A civil suit was
then filed, and during its pendency a secoud application was made under sec
tion 133 of the Code, with a like object, which was refused on the ground that
the civil suit was pending, and that there was no likelihood of a breach of the
Ii6 Prevention of Offences. [Chap. X.
peace. The civil suit resulted in the way being held to be a public thorough
fare. A third application was then made under section 133 to have the obs
truction removed, but the Magistrate held that, in the face of the two previous
orders, he could not interfere. Held, that the order of the Magistrate was
wrong, upon the ground that he was bound to make such enquiry, and as there
never had been any enquiry into the matter, the first decision being no decision
at all, but a mere dictum of the Magistrate upon a personal local investiga
tion without hearing evidence, and thus not on judicial enquiry, and the second
decision being based merely upon the pendency of the civil suit and previous
improper order, and that neither of these orders operated therefore as a bar to
the Magistrate's enquiry into the matter of the present complaint. Makhan
Lai Saha v. Makhan Chora Saha, I. L. R., 11 Cal., 271 (1885).
Application Where an application is made under section 133 of the Criminal Proce-
moveôbrtruc- ('ure Code, 1882, calling on a person to remove an obstruction, and such
tion—Disputed person bona fide raises a question of title : Held, that the case then becomes
tion_of"ICriiC' 0110 ôr a Civil Court. The section contemplates only an enquiry as to the
n'aTcourt. nmi" existence or non-existence of the obstruction complained of, not an enquiry
into disputed question of title. Askar Mea v. Sabdar Ilea, I. L. R., 12 Cal.
137 (1885).
Right of way The powers embodied iu sections 133, 134, 135, 136, 137 of the Criini-
"*hr —£i hii • 6 na' Procedure Code, 1882, with regard to the obstruction of public ways, are
right of way. ' ° D°t intended to be exercised where there is a bona fide dispute as to the
existence of the public right. Whore there is such a dispute, the Court
Bhould pass no order under those sections until the public right has been
established by proper legal proceedings, civil or criminal. Basaruddin
Bhinah v. Baha Rali, I. L. R., 11 Cal., 8 (.1884).
tTncondition- Every order made under section 133 of the Code of Criminal Procedure,
al order. 1882, must appoint a time within which, and a place where, the person to
whom it is directed may appear before the Magistrate, and move to have
the order set aside or modified. No unconditional order can be made under
that section. The Emprets v. Brojokanto Roy Chowdhuri,\. L. R., 9 Cal.,
637 (1883).
Disolxsdience The accused was convicted under the Penal Code of disobedience to a
to unlawful general order of the Magistrate directing the public not to frequent the
restraim^gpub- roa^B and public places at the village of P between certain hours. Held,
lie from walking that the conviction was bad. In re Komtd Kisto Bonick, 12 Cal. L. R.,
hours.
Jurisdiction- A Magistrate has no jurisdiction to make an order under section 518 of
nro'iStv
proper.,. " the
m Code of Criminal
v PrayagProcedure,
Singh, I . 1872,
L. R.,merely
9 Cal.,for
103the protection of property,
(1882).
District Ma- Where a Magistrate, in a proceeding under section 521 of the Code of
^vni P°We! Criminal Procedure, 1872. satisfies himself that there is no necessity for
of case raW proceeding further under that section, ho is competent to let the matter drop.
Issur Chunder Nath v. Kali Churn Nath, I. L. R., 8 Cal., 883 (1882).
Evidence— Where a person to whom an order has been issued under section 621 of
Procedure. the Code of Criminal Procedure, 1872, appeared to show cause against such
order, the Magistrate is bound to take evidence under section 525 of the
Code. In re Mohur Mandar, 8 Cal. L. R., 431 (1881).
Procedure— The fact of a Magistrate taking action under section 521 of the Code
Obstruction- 0f Criminal Procedure, 1872, is primafacie sufficient to show that he consi-
08 ' derfc the locut in quo to be a thoroughfare or public place ; and if no objec
tion is taken that it is not such, and the jury find that the order made under
that section is reasonable and proper, the High Court will not interfere.
In re Imandi Khan, 8 Cal. L. R., 399 (.1881).
A Civil Court is not competent to set aside the order of a Magistrate made Juriadiction—
under section 621 of the Code of Criminal Procedure, 1872, on the ground that How^ta?flndf~
sach order was made without jurisdiction because the land in respect of which 0( Magistrate
the order was made ia private property, and not a thoroughfare or public place. tnc?*!!j Ending
A Civil Court can, however, irrespective of an order made under section 621 codiTof CrimH
by a Magistrate, try the question, whether the land which formed the subject nai Proceduru
of such order is private property, and not a thoroughfare or public place, as ^ûmiBM^sS*
between the parties to such suit and those who claim under them. Per Field, 6SS-Estoppel. '
J.—A person who, on receipt of an order made by a Magistrate under section
621 of the Code declaring the existence of a right of way over such person's
lands, demands, under section 623 of the same Code, the appointment of a
jury to try whether such order was reasonable, is not by such action estopped
from afterwards bringing a suit in a Civil Court, seeking to established his
right to the exclusive enjoyment of the same lands. Mutly Ram Sahoo v.
Mohi Lull Roy, I. L. R., 6 Col., 291 (1880).
Before a Magistrate can make an order under section 521 of the Code of Obstruction—
Criminal Procedure, 1872, to remove an obstruction from a path alleged to be S^gg^g^f
a public thoroughfare, he must first, in a proceeding held under section 532, Functions or
have come to the conclusion that the path is open to the use of the public. {uryCPr?ceduri
The only functions which a jury appointed under section 523 can exercise, aro b° Miudatrate.
to consider whether the order made by the Magistrate under section 521 is
reasonable and proper, it being no part of their duty to determine the rights
of parties in property. Held, therefore, that where a Magistrate, through a
mistaken view of the law, ordered the removal of an obstruction on a pathway
under section 521, and had further submitted this order to the consideration of
a jury appointed under section 523, before he had himself come to a conclusion
whether such pathway was a public thoroughfare, the only course left open
to him under such circumstances was to stay all proceedings initiated under
section 521 and take action under section 532. In re Chundernath Sen, I. L.
R., 5 Col., 875 (1880).
When after enquiry a Magistrate finds that there is no sufficient cause Power to witti-
for proceeding under section 521 of the Code of Criminal Procedure, 1872, he draw order pass,
is competent to let the matter drop. As a Court of Revision, the High Court e y i d* no e -
will not enter upon a consideration of the value of the evidence on which the Court ol Bevi-
Magistrate decided so to act. Thonai Paraman'tck v. Joyendro Shaha, 1 Cal. M0,u
L. R., 486 (1878).
The Code of Criminal Procedure, 1872, section 521, does not warrant a Ma- Ejectment ol
gistrate's interference with a prostitute for the purpose of removing her from 8 Pros"tute-
her dwelling-house simply on the ground of her profession, so long as she be
haves herself orderly and quietly, and creates no open scandal by riotous
living. Nundo Kumaree Peshagur v . Anund Alohun Gooho Thahurla, 24 W.
B., 68 (1875).
An order by a Magistrate under section 521 of the Code of Criminal Pro- Nuisance—
cedure, 1872, for the removal of a nuisance does not become absolute until an Obstruction —
opportunity is given to the persons affected by it to show cause why the order —msobedleroo
should not be carried into effect. No order can be made under section 528 of ol order,
the Code, unless there is imminent danger or fear of injury of a serious kind
to the public involved in the case ; and where a Magistrate, who had made an
order under section 521, subsequently directed further enquiry to be made,
it was held that he must be considered to have abandoned his proceedings
under section 528, and that he should have proceeded under section 525, in
stead of fining the party charged under section 188 of the Penal Code. The
Queen v. Brojendro Lull, 21 W. R., 86 (1874).
A Magistrate's powers, under section 521, Code of Criminal Procedure, m^r-Nui-
1872, are confined to the instances specifically mentioned in that section, which 1 01 * '"
Prevention of Offences. [Chap. X.
does not confer general powers upon a Magistrate to pass any order he may
consider necessary for t lie protection of the public health, his only from a
thoroughfare or public place that under that section a Magistrate is at liberty
to direct a nuisance to be removed. In re Shah Soojant Hossein, 22 \V. R., 19
(1874).
piorougWare j Where in a proceeding before a Magistrate under section 308, Code of
Nuii»iice-Obs- Criminal Procedure, 1861, for the removal of an obstruction from a thorough-
tniction. fare or public place, the accused appears and shows cause , it is the duty of
the Magistrate to enquire whether there is a thoroughfare or public place, and
whether there is an obstruction. If the Magistrate makes an enquiry upon
evidence before him, he does not act without jurisdiction, or in excess of
jurisdiction. The High Court cannot set aside bis order except for an error
in law, or in excess of jurisdiction. It is not a ground for interference that
the Magistrate has come to an erroneous decision upon the evidence. A ngelo
v. Cargill, 9 Ben. L. R.,417 (.1872).
Nuisance— A previous sanction to the establishment of a trade does not entitle the
—Prescri tT\e proprietors to continue the business after it lias become a public nuisance to
right. the neighbourhood. No one has a right to corrupt the air of a particular
locality by the exercise of a noxious trade, simply because, at the commence
ment of the nuisance, no person was in a position to be injured by it; and no
prescriptive right can be acquired to maintain, and no length of enjoyment
can ligalize, a public nuisance involving actual danger to the health of the
community. Municipal Commissioners of Calcutta v. Mohamed Ali, 16 W.R.,
6 (1871).
Obstruction— In the case of a complaint under section 308 of the Code of Criminal
Thoroughfare— Procedure, 1861, for the removal of an obstruction from a thoroughfare, a
Jurisdiction. Magistrate should first inquire if the road is a public one or not. If he finds
in the affirmative, he has jurisdiction to proceed ; if in the, negative, he should
withhold his hand, and abstain from carrying out the order for removal of
the obstruction. In re, Becharam Bhuttacharje.e, 15 W. R., 67 (1S71).
Nuisance— When a Magistrate under section 308 , Criminal Procedure Code, 1861,
Slaughter has ordered the suppression of a trade or occupation as a nuisance and injuri
house. ous to the health of the community, the High Court will not interfere unless
they find either (1) that there was no reasonable evidence before the Magis
trate of the trade being injurious to the health and comfort of the commu
nity, or (ii) that the cause shown was such as ought to have satisfied the
Magistrate that his order for suppressing the trade was not reasonable and
proper. The Court take the findings of fact by the Magistrate to be correct,
unless they see that there is not on the record any evidence to warrant such
findings. The Municipal Commissioners of Calcutta v. Amanat Ali, 7 Ben.
L. R., 516 (1871).
Nuisance— The condition and the conduct of an old-established slaughter-house is
Slaughter - proved to be, in fact, an offensive nuisance and dangerous to the health of
neighbours ; but the evidence did not show it was in a worse condition than at
any time since its establishment ; the occupiers, when summoned, refused to
ask for a jury under section 310, Criminal Procedure Code, 1861. Held,
the Magistrate was justified in suppressing the " trade or occupation " under
section 308. No length of enjoyment can legalize a public nuisance. The
Municipal Commissioners of Calcutta v. Mahomed Ali, 7 Ben. L. R., 499
(1871).
Nuisance Section 308 of the Code of Criminal Procedure, 1861, is not applicable
public. where a private individual charges the public with committing a nuisance in
the exercise of an admitted right Becharam Ghorooee v. Boistubnath
Bhooyan, 14 W. R., (Civil Rulings) 177 (1870).
S. 134] Prevention of Offences. 119
Held, that a Magistrate cannot proceed to pass an order for the removal Public nuimnce
of a nuisance, under section 308 of the Code of Criminal Procedure, 1861, "aSt^" *
without calling on the party to show cause why the order should not be passed
against him, and without hearing the objections, even if they are filed after
the time fixed for their presentation, but before he takes up the case. A
Magistrate's power to till up a tank is, by section 308, limited to having it
fenced in ; but, when the tank is proved to be injurious to the community, he
may, under that section, treat it as a public nuisance, and cause it to be tilled
up. Reference to the High Court bg the Sessions Judge of Beerbhoom, 10 W.R.,
27 (1868).
The order of a Magistrate under section 308, Code of Criminal Procedure, Nuitnnce—
1861, should lie confined to a direction to remove the nuisance complained of. SSfiSfk?***
In the case of a tank, the Magistrate cannot order the proprietor to excavate
it ; the proprietor ought to have the discretion allowed him as to the mode
in which he will remove the nuisance caused by the tank. If a Magistrate
is compelled to direct the excavation of the tank, the actual cost of excava
tion can alone be charged against the proprietors, at whose disposition the
soil taken out in the course of excavation must be placed. Reference to the
High Court bg the Sessions Judge of Beerbhoom, 10 W. B., 51 (1868).
The obstruction of a drain into which the sewage of complainant's premi- Obstruction ot
sea fell does not fall either under section 308 or 320 of the Code of Criminal dra"1-
Procedure, 1861, but is matter for a civil suit and injunction. In re Trog-
Lckhomth Bose, 5 W R., 58 (1866).
The obstruction of a private path is not a nuisance under section 308, Obstruction ot
Code of Criminal Procedure, 1861. Before issue of order by a Deputy pm,,te ^
Magistrate for the removal of a nuisance, the opposite party should be
c-illed upon to show cause why the order should not be enforced. Queen v.
Janokenalh Bhuttacharjee, 2 W. B., 36 (1865).
134. (/) The order shall, if practicable, be served on the fervj°".or

. V' 1 • 1 • 1 1 • -iii- notification ot
person against whom it 13 made, in manner herein provided lor ortter.
service of a summons.
(2) If such order cannot be so served, it shall be notified by

proclamation, published in such manner as the Local Government
may by rule direct, and a copy thereof shall be stuck up at such
place or places as miy be fittest for conveying the information to
such person.
A Magistrate made an order under section 133 of the Code of Criminal Service of no-
Procedure, 1882, requiring N to fence a certain well in a public street or ulnderof ^Sf0™
to appear before him anil move to have the order set aside ; a copy of this iss, Criminal
order was affixed to the house of N, but he did not appear. The Magistrate l?j0edure
then adopted the procedure prescribed by sections 136, 140, and made an or- e'
der requiring N to fence the well by a certain date. N who was personally
served with notice of the above order did not comply with it. The Magis
trate then sanctioned the prosecution of N under section 188 of the Penal
Code. N appeared and produced evidence to prove that he was not liable to
fence the well. Held, that the accused was guilty of the offence of disobedi
ence to an order duly promulgated by a public servant and was not entitled
to go behind the order and show that it was one which ought not to have been
made. The mode of service of notice of an order under section 133 consi
dered. Queen-Empress v, Naragana, I. L. B., 12 Mad., 4?5 (1889).
Disobeying A District Magistrate, by an order made under section 144 of the Crimi-
order of public naj Procedure Code, 1882, after stating that it appeared that one G C S
"™»"/-Ord ol his recently established a hdt at S in the vicinity of K, an old-established
prohibiting hdt, and held it on the same days, and that in consequence of the establish-
boiding of Mi. ment of the new hdt and the endeavours made to induce or force people to
frequent the new hdt instead of the old one, a serious broach of the peace or
riots are imminent," ordered "that the said G C S and all other persons ab
stain from holding such hdt " on those days. The order was duly made and
promulgated, but not strictly in accordance with section 134 of the Code, and
the orders of Government made thereunder. Notwithstanding the order, one
P C A was found exposing goods for sale as a trader at the hdt on one of
the prohibited days, and he was thereupon charged with disobeying the order
of the Magistrate, and convicted of an offence under section 188 of the Penal
Code. Held, that the conviction was bad, as P C A did not come within
the description of the persons intended by the order to be prohibited from
" holding " the hdt, which referred to "holding" as owner or manager, not as
a trader : Held, also, that the terms of section 134 of the Code, and the
notification made by Government thereunder as to promulgation and issuo of
an order, are directory, but an omission to follow strictly such direction,
though it is an irregularity, does not invalidate the order : where therefore it
is shown that the order has been brought to the actual knowledge of the
person sought to be affected by it, such omission does not prevent the case
coming within section 188 of the Penal Code. Parbutty Charan Aich v.
Queen-Empress, LL.B, 16 Cal., 9 (1888).
Magistrate's Under section 137 of the Criminal Procedure Code, 1882, a Magistrate
duty to take is bound to take evidence as a basis for the order he has to make. Whore
evidence. a jjagjstrate had, without taking any evidence, ordered a privy to be removed,
and it appeared in so doing he had acted solely on his own opinion that the
privy was a nuisance : Held, that he acted illegally and ultra vires. In re
Muhadaji Sadashiv Tilalc, I. L. R., 11 Bom., 375 (1887).
Public nuisance T° support a conviction under section 291 of the Penal Code, there must be
repe a t i n g or proof of an injunction to the accused individually against repeating or con-
Inju'nct'i 'onîy tinning the same particular public nuisance. It must be shown that the
public servn n t person convicted had on some previous occasion committed the particular
cflntV'n'ueûi- nu'8ancei had been enjoined not to repeat or continue it, and had repeated
sance. or continued it. The authority under which a Magistrate can order or en
join a person against repeating or continuing a public nuisance is section 143 of
the Code. It is the infringement of this order that is punishable under section
291 of the Penal Code. What is contemplated is an order addressed to a
particular person. A Magistrate's powers to deal with public nuisances are
contained in Chapters X and XI of the Criminal Procedure Code. Chapter
XI is only properly applicable to temporary orders in urgent case. It is only
in such cases that an order may be made ex parte, and any exception is
allowed to the general rule that it shall be directed to a particular individual.
In such emergent cases an order may, under section 144 of the Code, be
directed to the public generally, when frequenting or visiting a particular
place, to abstain from a certain act ; but this provision does not apply to a
proclamation directed not to the public generally frequenting or visiting a
particular place, but to a portion of the community. Queen-Empress v.
Jokhu, I. L. B., 8 All., 99 (188G).
Order restrain- The accused was convicted under the Penal Code of disobedience to a
ing nubjic from general order of the Magistrate directing the public not to frequent the roads
streets between an(l public places at the village of P between certain hours. Held, that the
certain hours, conviction was bad. In re Komul Kisto Iionick, 12 Cal. L. R., 231 (1883).
Nuisance, re- The mere non-service personally of a notice to remove a nuisance is not
moval of-Per- a sufficient ground for the Court, under section 434 of the Code of Criminal
notice."0"'" Procedure, 1861, to set aside the Magistrate's order, when it appears that
S. 135.] Prevention oj Ofences. 121
the parties did not take the objection before the Magistrate, and that they
in fact admitted knowledge of the existence of the notice, and sought to
excuso thoir failure to obey it. Hochan v. Elliot, 5 W. K., 4 (1866).
135. The person against whom such order is made, shall— *uwhSu
dressed to otiey
(a) perform, within the time specified in the order, the act °J j,,0™"8
directed thereby ; or
(b) appear in accordance with such order and either show
cause against the snme, or apply to the Magistrate by
whom it was made to appoint a jury to try whether the
suine is reasonable and proper.
An owner of land has a right to bring a suit under section 42 of the ^]]>s'Sjctl0"1iKth.
Specific Relief Act against any one of the public who formally claims to use wny-Civil
such lands as a public road, and who thereby has endangered the title of the Court,
owner. To such a suit it is unnecessary to make the Secretary of State a party.
Such a suit is not barred by an order of a Criminal Court under section 137,
Act X of 1882. Chuni Lull v. Earn Kishen Sahu, I. L. K., 15 Cal., (F. B.)
4G0 (1888).
Under section 521 of the Criminal Procedure Code, 1872, a rirst-clnss °i"tl^'tc',forire-"
Magistrate in charge of a taluka made an order, declaring certain land to be moriu or obs-
part of a public thoroughfare, and directing the plaintiff to remove the obstruction from
truction caused by him to it. The plaintiff sued the Magistrate to establish ?0^hfnro—Suit
his right to the land, alleging that it was his private property, and that the n^mnst Magis-
Magistrate's order was wrong. The Assistant Judge, who tried the suit, ®. ,0t cslau"
dismissed it, holding that it did not lie against the Magistrate. On appeal to 18 ingl
the High Court,—Held, that the Assistant Judge might have properly per
mitted the plaintiff to amend his suit by striking out the name of the first-
class Magistrate as defendant, and substituting in that capacity the Secretary
of State for India in Council. The High Court, accordingly, reversed the
decree of the Assistant Judge, and remanded t!.e suit for retrial on the merits,
after making the amendment directed. Nillcanthapa Malkapa v. The Magis
trate (first-dusts) in charge of Sholapur, I. L. ]{., 6 Bom., 670 (1882); see
also Balarani Cfiatrukalal v. The first-class Magistrate in charge of Taluka
lgatpuri, I. L. R., 6 Boin., 072 (1882).
Per Field, J.—A person who, on receipt of an order made by a Magis- J*'!*]1'0' (w°[,^
trate under section 521 of the Criminal Procedure Code, 1872, declaring the in' civil Court,
existence of a right of way over such person's lands, demands, under section
523 of the same Code, the appointment of a jury to try whether such order
was reasonable, is not by such action estopped from afterwards bringing a
suit in a Civil Court, seeking to establish his right to the exclusive enjoyment
of the same lands. Mutty Rum tiahoo v. Mohi Lall Hog, I. L. R., 6 Cal.,
21)1 (1880).
When tho person on whom a notice lias been issued under section 521 of Application tor
the Code of Criminal Procedure, 1872, applies for a jury, the Magistrate is 11 )ur5'
bound to appoint one, anil cannot decide the matter by a local enquiry.
In re M„thoor Chunder Pass, 2 Cal. L. R., 50'J (1878).
[n a case iu which a party, on whom an order had beeu made for abate- Nuisance—
ineut of nuisance, applied, under section 523 of the Code of Criminal Proce- Jury,
dure, 1872, for the appointment of a jury, the Magistrate appointed the com
plainant and two of his witnesses to be—the former the foreman, and the
latter two of the members of the jury. Held, that the jury so constituted by
the Magistrate was not a proper tribunal under section 523 of the Code, and tho
proceedings, &c, were accordingly set aside, and the Magistrate directed to
appoint a fresh jury. Brindabuu Dutt v. Dicarka Nat A Sent, 22 W B ,
47 (1874).
Removal of The concluding clause of section 311 of the Code of Criminal Procedure,
COurt?*- 1861, though it prevents Civil Courts from entertaining a suit to restrain a
Magistrate from carrying nut an order mado under section 308, or a suit for
damages against the Magistrate or any other person in carrying out such order
in the manner provided by law, does not bar a person against whom such an
order lias been carried into effect from instituting a suit to prove that land
declared by the Magistrate to be public is his private property. Lalji Ukheda
V. Jowba Doirba. 8 Bom. II. C, 'J4 (1871).
consequwce 136 If such person does not perform such act or appear
d'o'so '!,ili'"tt0 antl show cause or apply for the appointment of a jury as required
by section 135, lie shall be liable to the penalty prescribed in that
behalf in section 188 of the Indian Penal Code, and the order
shall be made absolute.
[Disobedience [188 (P. C). Whoever, knowing that, by an order promulgated
promSe-Siiy b? a Publiu s<,r™"t lawfully empowered to promulgate such order, he is
vim'"] 0 S<?l" dlrected *° ahstal» frop> « certain act, or to take certain order with certain
property in his possession or under his management, disobeys such direc
tion, shall, if such disobedience causes or tends to cause obstruction, an
noyance, or injury, or risk of obstruction, annoyance, or injury, to any
person lawfully employed, bo punished with simple imprisonment for
a term which may extend to two hundred rupees, or with both ; and
if such disobedience causes, or tends to cause, danger to human life,
health, or safety, or causes, or tends to cause, a riot or affray, shall
be punished with imprisonment of either description for a term which
may extend to six mouths, or with fine which may extend to one thou
sand rupees, or with both.
Explanation.—It is not necessary that the offender should intend to
produce harm, or contemplate his disobedience as likely to produce harm.
It is sufficient that he knows of the order which he disobeys, and that
his disobedience produces, or is likely to produce, harm.
Illustration.
An order is promulgated by a public servant lawfully empowered

to promulgate such order, directing that a religious procession shall not
pass down a certain street. A knowingly disobeys the order, and there
by causes danger of riot. A has committed the offence defined in this
section.]
Service of notice A Magistrate made an order under section 133 of the Code of Criminal
ot orders under Procedure, 1882, requiring N to fence a certain well in a public street or to
section 133. appear before him and move to have the order set aside ; a copy of this order
was affixed to the house of A', but he did not appear. The Magistrate then
adopted the procedure prescribed by sections 130, 140, and made an order re
quiring N to fence the well by a certain date. N who was personally served
with notice of the above order, did not comply with it. The Magistrate then
sanctioned the prosecution of N under section 188, Penal Code. A" appeared
and produced evidence to prove that he was not liable to fence the well. Held,
Ss. 136-137.] Prevention of Offences. 123
that the accused was guilty of the offence of disobedience to an order duly
promulgated by a public servant and was not entitled to go behind the order
and show that it was one which ought not to have been made. Queen-Empress
v. Nurayana, I. L. R., 12 Mad., 475 (1889).
An order by a Magistrate under section 521 of the Code of Criminal Proce- Nuisance -
dure, 1872, for the removal of a nuisance, does not become absolute until an IMiblic ser-
opportunity is given to the persons affected by it to show cause why the fa",\ce oTonlcr.
order should not be carried into effect. No order can be made under section
528 of the Code, unless there is imminent danger or fear of injury of a serious
kind to the public involved in the case ; and where a Magistrate, who had
made an order under section 521, subsequently directed further enquiry to be
made, it was held that he must be considered to have abandoned his proceed
ings under section 528, and that he should have proceeded under section 525,
instead of fining the party charged under section 188 of the Penal Code.
The Queen v. Brojeiuho Lull, 21 W. P.., 80 (1874).
Held, that a Magistrate cannot proceed to puss an order for the removal Public nui-
of a nuisance, under section 308 of the Code of Criminal Procedure, 1801, with- tnVuPiTtUii'v!''"
out calling on the party to show cause why the order should not be passed
against him, and without hearing the objections, even if they are tiled after
the time fixed for their presentation, but before he takes up the case. A
Magistrate's power to till up a tank is, by section 308, limited to having it
fenced in ; but where the tank is proved to be injurious to the community, he
may, under that section, treat it as a public nuisance, and cause it to be tilled
up. In re Bistoo Chunder Chuckerbutty, 10 W. B., 27(1808).
137. (1) If bo appears and shows cause against the order, p,r ° c c d 11 rhJ;
the Magistrate shall take evidence in the matter as in a summons- nVi«'!r« to show
case. c'mc-
(2) If the Magistrate is satisfied that the order is not reason
able and proper, no further proceedings shall be taken in the case.
(3) I f the Magistrate is not so satisfied, the order shall be
made absolute
In a complaint for alleged obstruction of a public thoroughfare, the Olistruciion lo
Magistrate, after making preliminary enquires, was of opinion that the alleged P"1'1^ jj1].1'
way was not a public thoroughfare, and refused to take action under section ("iqiiir,v." ' '"
1:^3 of the Code of Criminal Procedure, 1882. The- Sessions Judge, being
of opinion that the Magistrate should have gone on with the case, directed a
further enquiry under section 133. Such enquiry was held, and the Magis
trate, without taking evidence in support of the c plaint, made his conditional
order under section 133 absolute under section 137. Held, that the order of
the Sessions Judge, directing a further enquiry, was idtra vires, there being
no section of the Code under which an order l'or further enquiry could be
made in the case; section 437 having no application. Held, also, that the
Magistrate, before whom the petitioner showed cause, should not have made
his conditional order under section 133 absolute without taking evidence upon
the matter of the complaint : the words " evidence in the matter " meaning
" in the matter of the complaint," and not simply evidence which the oppo
site party might offer. Srinalh Hoy v. A inaadi Haider, I. L. R., 24 Cal.,
395 (18117).
Code with reference to obstructions to public ways, it is open to the Magis- ^"."f*tt" °'
trate to enquire into the bonu fides of the claim ; and where he decides C"mo ' e"
Prevention of Offences, [Chap. X.
against its bona fides he must state reasons for his decision, which will be
subject to revision by the High Court. Such a claim must be set up at or
before the hearing and not afterwards. Luekhee Narain Banerjee v. Ram
Kumar Muhherjee, I. L. R., 15 Cal., 564 (1888).
Obstruction to An owner of land has a right to bring a suit under section 42 of the
- criminal Pro* Specific Relief Act against any one of the public who formally claims to
ceduro Code— use such land as public road, and who thereby has endangered the title of
Parties, the owner. To such a suit it is unnecessary to make the Secretary of State
a party. Such a suit is not barred by an order of a Criminal Court under
section 137 of the Criminal Procedure Code. Chuni Lall v. Bam Kishen
Sahu, I. L. R.( 15 Cal , 460 (1888).
Magistrate's Under section 137 of the Criminal Procedure Code, 1882, a Magistrate
duty to take is bound to take evidence as a basis for the order he has to make. Where a
evidence. Magistrate had, without taking any evidence, ordered a privy to be removed,
and it appeared that in so doing lie had acted solely on his own opinion that
the privy was a nuisance, held, that ho acted illegally and ultra vires. In re
Mahadaji Sadashiv Tilak, I. L. R., 11 Mad., 375 (1887).
Right of way A Civil Court is not competent to set aside the order of a Magistrate
i^HoWo''lMariJ- made under section 521 of the Code of Criminal Procedure, 1882, on the
troto tiioreon ground that such order was made without jurisdiction because the land in res-
binding on Civil pect 0f which the order was made is private property, and not a thoroughfare or
Court. public place. A Civil Court can, however, irrespective of an order made
under section 521 by a Magistrate, try the question, whether the land
which formed the subject of such order is private property, and not a
thoroughfare or public place, as between the parties to such suit and those
who claim under them. Per Field, J.—A person who, on receipt of an
order made by a Magistrate, under section 521 of the Code of Criminal Pro
cedure, declaring the existence of a right of way over Buch person's land,
demands, under section 523 of the same Code, the appointment of a jury to
try whether such ordor was reasonable, is not by such action estopped from
afterwards bringing a suit in a Civil Court, seeking to establish his right
to the exclusive enjoyment of the same lands. Muttyram Shahoo v. Mohi Lull
Roy, I. L. R., 6 Cal., 291 (1880). See also contra, 1. L. R., 14 Cal., 60
(1886).
Application for Where an application is made under section 133 of the Criminal Proce-
""sfn'etioi"— Ve dure Code, 1882, calling on a person to remove an obstruction, and such per-
l)is|>Ht«l title- son bona fide raises a question of title : Held, that the case then becomes one
CrinSfnSl'ccurt £or a ^'v'' Court. ^ne sect'on contemplates only an enquiry as to the exis-
' tence or non-existence of the obstruction complained of, not an enquiry into
disputed questions of title. Askar Mea v. Sabdar ilea, I. L. R., 12 Cat., 137
(1885) ; Lai Miah v. Naxir Khalashi, I. L. R., 12 Cal., 696 (1886).
Uonditional A Subdivisional Magistrate having made a conditional order, under section
nSiranceor1'6 133 o£ tlle Cocle of Criminal Procedure, 1882, against a person to abate a nui-
appcar and sance or appear and show cause before a second-class Magistrate why the order
sliuw cause- should not be enforced, the said person appeared as directed and the order was
made absolute under section 137. The second-class Magistrate then issued a
notice and order under section 140, requiring the nuisance to be abated within
a certain date. The District Magistrate having referred the case on the ground
that the second-class Magistrate had no jurisdiction to pass final orders in such
cases: Held, that the order was not illegal. In re Narasimha, I. L.R., 9
Mad., 201 (1886).
Right of way The powers embodied in sections 133,131,135, 136, 137 of the Criminal
ii?-l'ublk- right Procedure Code, 1882, with regard to the obstruction of public ways, are not
of way. intended to be exercised where there is a bona fide dispute as to the existence
of the public right. Where there is such a dispute, the Court should pass no
S. 137O Prevention of Offences. 125
order under those sections until the public right has been established by proper
legal procee lings, civil or criminal. Biiaruliin B'uiiahv. Baba Rati, I. L.
R., 11 Cal., 8 (1884).
Where a person to whom an order has been issued under section 521 of the Nuisance -Ma-
Code of Criminal Procedure, 1872, appears to show cause against such order, gistrotc bound
the Magistrate is bound to take evidence under section 525 of the Code. to t»koevidenee.
In re Mohur Mandar, 8 Cal L It., 431 (1881).
Before a Magistrate can make an order under section 521 of the Code of Order of Mas>>
Criminal Procedure, 1872, to remove an obstruction from a path alleged to be a 0™lûI£u_"pJj£"!!
public thoroughfare, he must first, in a proceeding held under section 532, have dure to"bc ob-
come to the conclusion that the path is open to the use of the public. The only served by Mal
functions which a jury appointed under section 523 can exercise, are to con- m e'
sider whether the order liiado by the Magistrate under section 521 is reason
able and proper, it being no part of their duty to determine the rights of par
ties in property. Held, therefore, that whete a Magistrate, through a mistaken
view of the law, ordered the removal of an obstruction on a pathway under
section 521, and had further submitted this order to the consideration of a pre
appointed under section 523, before he had himself come to a conclusion whe
ther such pathway was a public thoroughfare, the only course left open to him
under such circumstances was to stay nil proceedings initiated under section
5-1 and take action under section 532. In re Chunder Natk Sen, I. L. R., 5
Cal., 875 (1880).
On the 11th August, 1879, the defendant, as a Magistrate in charge of a Pn'er. °'Magis-
taluka, made an order under sections 523 and 526 of the Criminal Procedure Jj* ohrtnrcttoii
Cede, 1872, directing the plaintiff to remove a certain " ota " on the ground from public thu-
that it had been built upon a public thoroughfare. The plaintiff thereupon Jo" rataWish"'1
sued the Magistrate for a declaration that the "ofa" and site belonged to him, right,
and prayed for a reversal of the Magistrate's order. The Assistant Judge,
who tried the suit, dismissed it, holding that it did not lie against the defen
dant. On appeal, the High Court, following the decision in Nilkanthapa
Mcdkpapa v. Fht Magistrate {first-class) in charge of Sholapur Taluka, revers
ed the decree of the Assistant Judge, and remanded the case, in order that
the plaintiff might amend his suit by striking out the name of the first-class
Magistrate as defendant, and substituting in that capacity the Secretary of
State for India in Council, and directing the lower Court to determine the
Buit upon its merits after the above amendment and due service of process.
Balaram Chatrukalal v. Thefirst-class Magistrate in charge of Taluka Igatpuri,
I. L. R., 6 Bom., 672 (1882).
Under section 521 of the Criminal Procedure Code, 1872, a first-class Order *>}' M»K'*:
Magistrate in charge of a taluka made an order declaring certain lands to be op1 obstruction
part of a public thoroughfare, and directing the plaintiff to remove the 'rom a public
obstruction caused by him to it. The plaintiff sued the Magistrate to estub- Bn"|^Sn*™ ~
lish his right to the land, alleging that it was his private property, and that Magistrate to
the Magistrate's order was wrong. The Assistant Judge, who tried the suit, establish right,
dismissed it, holding that it did not lie against the Magistrate. On appeal to
the High Court, held, that the Assistant Judge might have properly permitted
the plaintiff to amend his suit by striking out the name of the first-class
Magistrate as defendant, and substituting in that capacity the Secretary of
State for India in Council. The High Court, accordingly, revoreed the decree
of the Assistant Judge, and remanded the suit for retrial of the merits, after
making the amendment directed. Nilkanthapa Malkapa v. Magistrate in
charge of the Shojapur Taluka, I. L. R., 6 Bom., 670 (1880).
Gates having been placed at one end of a private road by a person claim- B.'8nt »' wnV
ing to be its sole proprietor, with the intention of preventing the use of such
private road by the public between the hours of sunset and sunrise, and the
126 Prevention of Offences. [Chap. X.
Deputy Commissioner of Darjeeling, acting for the public, having obtained
from the Magistrate an order under section 532 of the Criminal Procedure
Code, 1872, " that possession of the private road be not taken by the person
claiming to be proprietor to the exclusion of the public until he
shall have obtained the decision of a competent Civil Court adjudging him to
be entitled to exclusive possession." Held, that there being no evidence of any
one having exercised or claimed to exercise the right of passing over the road
between sunset and sunrise, there was no dispute under section 532 of the
Criminal Procedure Code ; and that the order of the Magistrate was made
without authority, and must be set aside. Section 532 does not enable a
Magistrate to make u purely declaratory order. It only enables him to prev ent
arbitrary interruption by any person of rights actually enjoyed, which have
been exercised by the public or a person or class of person. Maluiraja of
Burdwan v. The Chairman of the Darjeelinn MunicipaUtii, I. L. 1!., 5 Cal..
1D4 (1879).
Power to with- When after enquiry a Magistrate finds that there is no sufficient cause
cd1WV:Mi!!oP,,o"f ôr Procee('mK under section 521 of the Code of Criminal Procedure, 1872,
evidence Court he is competent to let the matter drop. As a Court:of Revision, the High Court
of Revision. will not enter upon a consideration of the value of the evidence on which the
Magistrate decided so to act. Shortai Paramanick v. Jogendro Shaha, 1 Cal L
11., 486 (1878).
Obstruction— In a case in which a Magistrate ordered a person either to remove an
J\irv.W''V— obstruction to a path leading to a road or to show cause why such order
should not be enforced, and in which, subsequently, the Magistrate, on the
application of the party charged, appointed a jury under section 523 of the
Code of Criminal Procedure, 1872, it was held that the question the jury
should have been told to try was the question whether the first order of the
Magistrate was reasonable and proper, and for that purpose to consider whe
ther there was a bona fide question between the parties as to the right of way
o''cr this particular piece of land. Roy Oiiiesh thunder Sen v. Ichanath
Mozumdar, 21 W. R., 64 (1874).
Tuoro'iHifa1-- *n tlie case °* !l COTnPlaint un(]er section 308 of the Code of Criminal
MiwistniJoVju- Procedure, 1861, for the removal of an obstruction from a thoroughfare, a
-^rîcTToiK Magistrate should first enquire if the road is a public one or not. If he finds
in the affirmative, ho has jurisdiction to proceed ; if in the negative, he should
withhold his hands, and abstain from carrying out the order for removal of
the obstruction. In re Becharam Bhuttacharjee, 15 W. R., 67 (1871).
Public nuisance Held, that a Magistrate cannot proceed to pass an order for the removal
Miwilstrnte'i 0f a nuisance, under section 308 of the Code of Criminal Procedure, 1861,
y" without calling on the party to show cause why the order should not be passed
against him, and without hearing the objections, even if they are riled after the
time fixed for their presentation, but before he takes up the case A Magis
trate's power to fill up a tank is, by section 308, limited to having it fenced
in ; but, when the tank is proved to be injurious to the community, he may,
under that section, treat it as a public nuisance, and order it to be filled up.
In re Bistoo Chunder Uutckerbuttg, 10 VV. B., 27 (1868).
wh^re'i'icciaims 138. (7) On receiving an application uuder section 135 to
•nry. appoint a jury, the Magistrate shall —
(a) forthwith appoint a jury consisting of an uneven num
ber of persons not less than five, of whom the foreman
and one-half of the remaining members shall be nomina
ted by such Magistrate, and the other members by the
applicant ;
(J>) summon such foreman and members to attend at such
place and time as the Magistrate thinks fit ; and
(c) fix a time within which they are to return their verdict.
(2) The time so fixed may, for good cause shown, be ex
tended by the Magistrate.
For form of Magistrate s order constituting a jury, see schedule
V, :Vo. 17.
In the nomination of those members of the jury, the nomination of Jury, conatitu-
whom devolves upon the Magistrate under the provisions of section 138 of nXnofi^yby
the Criminal Procedure Code, 1882, it is his duty to exercise his own inde- Mnjtiitrate-
pendent discretion, and not merely to accept persons who may be put forward ot
by the party opposed to the applicant. A jury constituted in violation of c
the provisions of section 138 is not legally constituted, and is incapable of
making a legally binding award. Where a claim is raised to the land in les-
pect of which proceedings are taken, the Magistrate before proceeding further
should satisfy himself as to the bona fides of the claim. Upendra Natk
Bhuttacharjee v. Khitish Chandra Bhuttacharjee, I. L. R., 23 Cal., 499 (1896).
One K R having been ordered by a Magistrate under section 133 ot the Ord« f°b£ruc-
Co le of Criminal Procelure, 1882, to remove an alleged obstruction, applied tioti- Appoint
or a jury. Five jurors were chosen, who, having examined the place in merit of jury to
dispute, proceeded without consultation to deliver separate and independent ^»nnolcncss
opinion. The verdict of the majority was in favor of upholding the Magis- of sucli order—
(rate's order. The Magistrate, however, discharged his order. On reference Procedure.
by the Sessions Judge under section 438 of the Code, it was held, that the last
order of the Magistrate should be set aside and the case remanded for consi
deration by a fresh jury. Queen- Empress v. Khushali Ram, I. L. It., 18 All.,
158 (1895).
Notice having been issued to certain defendants under sections 133, 134 Order for remo
of tho Co le of Criminal Proee lure, 1882, to remove a nuisance, it appeured Xceu^d''nr'pty-
that an application was made to the Magistrate to appoint a jury, but that the iiv, t„T nppoint-
Magistrate considering the case a clear one, without appointing a jury, direct- j?0^;"' „r JcSJirt
cd the defendants to remove the nuisance within a month. Field, that under toOW?«iioro such
the express language of section 138 of the Code, the Magistrate in proceeding application,
after the application had been made to dispose of the case without empannelliug
a jury, acted altogether without jurisdiction, and that the order complained
of must be set aside. Gaintle Rai v. The Emprses, Panj. Itec. 1887, 39.
One out of five jurors appointed under section 138 of the Code of Cri- Jury illegally
minal Procedure, 1882, declined to act in the jury. Two out of the remainder ju^r '"eTisTng
of the jury were in favour of a temporary order under section 133 being i0 act-
maintained, whilst the other two were against its being so maintained. The
Deputy Magistrate decline 1 to pass any order under section 139 of the Code of
Criminal Procedure, as a majority of the jurors did not find the temporary
order to be reasonable and proper, and he therefore struck off the case. Held,
that the course tiken by tho Deputy Magistrate was irregular, and ordered
that a frosh jury be summoned, and the case enquired into anew. Uma
Charn Mundle v. Joshsin Sheikh, I L. R., 11 Cal., 84 (1884).
Prevention of Ofences. [Chap. X.
This order having been disobeyed, proceedings were taken under section 188
of the Penal Code against the person to whom it was directed, and he was
convicted and sentenced to imprisonment. Held, that the report upon which
action was taken not being the report of a regularly constituted jury, the
order and the conviction and sentence passed on disobedience thereto were
illegal. Empress v. Bhoirab Chunder Datta, 10 Cal. L. R., 193 (1881).
Obstruction to In order to give a Magistrate jurisdiction to direct the removal of an
' ubnc8''!"™
fi"tyICof - un,awful
"jui-y— obstruction
1872j the place undermust
obstructed section
be a 521 of the Code
thoroughfare of Criminal
or public Procedure,
place ; and where
Bomoval of this is disputed by the person on whom notice to remove the obstruction has
juror. been served, the decision of the question cannot be referred, under section 523,
to a jury. A Magistrate ought not, at the instance of one party, and behind
the back of the other, to cancel the appointment of a juror, even if such juror
be his own nominee. Chunder Nath Sen v. Ram Dyal Ghutluck, G Cal. L. R.,
379 (1880).
Pathway—Or- Before a Magistrate can make an order under section 521 of the Code of
irate— Fun'K'S ^''■m,'na' Procedure, 1872, to remove an obstruction from a path alleged to be
tions of jury— 11 public thoroughfare, he must first, in a proceeding held under section 532,
Procedure " to have come to the conclusion that the path is open to the use of the public.
MnJtisTrate? by ^ne on'v functions which a jury appointed under section 523 can exercise,
are to consider whether the order made by the Magistrate under section 521 is
reasonable and proper, it being no part of their duty to determine the rights
of parties in property. Held, therefore, that when a Magistrate, through a
mistaken view of the law, ordered the removul of an obstruction on a pathway
under section 521, and had further submitted this order to the consideration
of a jury appointed under section 523, before he had himself come to a con
clusion whether such pathway was a public thoroughfare, the only course left
open to him under such circumstances was to stay all proceedings initiated
under section 521, and take action under section 532. In re Chunder Nath
Sen, I. L. R., 5 Cal., 875 (1880).
Onler to open When the person on whom a notice has been issued under section 521,
tioTfor a jury- Cotle °* Criminal Procedure, 1872, applies for a jury, the Magistrate is bound
Local enquiry, to appoint one, and cannot decide the matter by a local enquiry. In re Mo-
thoor Chunder Dues, 2 Cal. L. R., 509 (1878).
Nuisance-Jury. In a case in which a party, on whom an order had been made for abate
ment of nuisance, applied, under section 523, Code of Criminal Procedure,
1872, for the appointment of a jury, the Magistrate appointed the complainant
and two of his witnesses to be—the former the foreman, and the latter two of
the members of the jury. Held, that the jury so constituted by the Magistrate
was not a proper tribunal under section 523 of the Code, and the proceedings,
&c, were accordingly set aside, and the Magistrate directed to appoint a fresh
jury. Brindabun Butt v. Dwarka Nath Sein, 22 W. R., 47 (1874).
Magistrate— Where a jury, appointed by a Magistrate under section 523 of the Code of
Jury— Proce Criminal Procedure, 1872, had fully entertained and considered the matter
dure. submitted to it, and the individual members of the jury had given in their
opinion to the foreman to report to the Magistrate, and the only delay was in
the foreman's making the report, it was held that the Magistrate could not
appoint a second jury to consider the matter afresh, but ought to have acted
on the report of the first jury, which had been given in before he made his
final order in the matter. Sheikh Nozumuldy v. Hasim Khan, 21 W. R., 54
(1874).
High Court- A Magistrate, acting undor section 523 of the Code of Criminal Procedure,
Procedure-Ma- 1872, should exercis! his own independent discretion in selecting the members
eis rate ury. ^ ^ an(1 ^ persons s0 selected by hiin should not be nominee of the
3: {39 1 : Pretention -of ' Ofen.ces.
party interested in upholding the Magistrate's order. In this 'case, the High
Court, acting as a Court of revision, under section 2i)7, set aside the order of
the Magistrate appointing to the jury persons who had been appointed by the
opposite party, as it held that tne error of procedure was a material one, inas
much as the merits of the case had been thereby affected. Raja Sheti/animdo
Ghosal v. The Camperdown Pressing Company, Ld., 21 W. U., 43 (1874).
A jury appointed under section 310, Code of Criminal Procedure, 1861, is not obstruction -
legally constituted when the Magistrate appoints only the foreman of the jury. Jury.
The award of a jury under that section long after the expiry of the time lixed
for giving an award is illegal, and cannot be uphold by a Magistrate, who
should, in such a case, take up the case himself and decide it. Ditto Nalh
Lhuckerbutty v. Hur Gobind I'al, 16 W. R, 23 (1871).
In referring a case regarding a nuisance to arbitrators under section 310, procodurc-Nui-
Code of Criminal Procedure, 1861, a Magistrate Bhould fix a time within sance-Arbitra-
which the arbitrators are to send in their award ; and this must be done when- ore'
ever from any cause the constitution of the jurors is changed and a fresh
jurjr i.i appointed. Whore this is not done, a Magistrate cannot carry out
his original order if there is any delay in the submission of the award by the
arbitrators. In re Shama Kant Bundopadhya, 14 \V. R., 69 (1870).
139. (/) If the jury or a majority of the jurors find that ^™^lui™ findg
the order of the Magistrata is reasonable and proper as originally m '.îSs
made, or subject to a modification which the Magistrate accepts, ^bl^be rea"
the Magistrate shall make the order absolute, subject to such mo
dification (if any ).
(2) In other cases, no further proceedings shall be taken un
der this chapter. ' . .
One oat of five jurors appointed under section 138 of the Code of Crimi- jUTy ineRally
aal Procedure, 1882, declined to act on the jury. Two out of the remainder constituted—
of the jury were in favour of a temporary order under section 133 being ^"rorrrfusiiigto
maintained, whilst the other two were against its being so maintained. Tire
Deputy Magistrate declined to pass any order under section 139-of the Code,
as a majority of the jurors did not find the temporary order to be reasonable
and proper ; and he therefore struck off the case. Held, that the course
taken by the Deputy Magistrate was irregular ; and ordered, that a fresh jury
be summoned, and the case enquired into anew. Uma Churn SlunJle v.
Joshei* Sheikh, I. L. R., 11 CaL, 84 (1884).
The law requires a juryman to exercise his own understanding on juryman—Le
the case submitted to him, and to decide an evidence, and not to follow gal majority,
blindly the opinion of his fellows. Where one out of three (in a jury of five)
depends on the inspection and inquiries of the other two, the verdict of the
three is not that of a legal majority. The provisions of the Code of Crimi
nal Procedure, 1872, sections 521 to 523, are only applicable when there is
no doubt that the place where the alleged obstruction exists in a public
thoroughfare. Petamber Jugi v. Nasarttddy, 25 W. R., 4 (1875).
Whore a party objects to tho verdict of a jury, he ought to give Jury-Objection
the Magistrate reasonable prima facie ground for the opinion, either that the to 1,10 vordic*-
jury did not, in fact, apply a judicial discretion to the case, or that the verdict
was such as the jury could not have arrived at by a proper exercise of their
fliscrction upon the materials before them. UheMun Chindrr Dutt v.
Dirarka Nalh Sen, 23 W. R, 15 (1«75).
130 Prevention of Offences, [Chap. X.
Nui«ance—Obi- Where a jury is appointed under section 310 of the Code of Criminal
truction-Jurv. procedure, 1861, to try whether an order passed hy the Magistrate for the
removal of a nuisance or obstruction is reasonable or not, the Magistrate is
bound under that section to be guided by the decision of the jury. Refer
ence by the Sessions Judge of Cuttack in re Queen v. Poholee Mullick, >2
W.K., 28(1869).
S5SrH,Te?ng . 140, U\ When an order has been made absolute under sec-
m»do iiisoiut*. tion 136, section 137 or section 139, the Magistrate shall give
notice of the same to the person against whom the order was made,
and shall further require him to perform the act directed by the
order within a t me to be fixed in the notice, and inform him" that,
in case of disobedience, he will be liable to the penalty provided
by section 188 of the Indian Penal Code.
of0ndfwbeS?encc ^ sucn ac* *9 not Perf°rmed within the time fixed, the
to order. Magistrate may cause it to be performed, and may recover the
costs of performing it, either by the sale of any building, goods or
other property removed by bis order, or by the distress and sale
of any other moveable property of such person within or without
the local limits of such Magistrate's jurisdiction. If such other
property is without such limits, the order shall authorise its attach
ment and sale when endorsed by the Magistrate within the local
limits of whose jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith

nnder this section.
For form of Magistrate's notice and peremptory order after the

finding by a jury, see sclieduleV, No* 18.
Service of notice A Magistrate made an order under section 133 of the Code of Criminal
£en?o\*™33--i)£- Procedure, 1882, requiring N to fence a certain well in a public street or to
obedience. appear before him and move to have the order set aside : a copy of this order
was affixed to the house of JV, but he did not appear. The Magistrate then
adopted the procedure prescribed by sections 136, 140, and made an order
requiring N to fence the well by a certain date. N who was personally
served with notice of the above order did not comply with it. The Magis
trate then sanctioned the prosecution of N under section 188 of the Penal
Code. N appeared and produced evidoncc to prove that he was not liable to
fence the well : Held, that the accuse 1 was guilty of the offence of disobe
dience to an order duly promulgated by a public servant and was not entitl
ed to go behind the order and show that it was one which ought not to have
been made. The mode of service of notice of an order under section 133
considered. Queen-Empress v Narayana, I. L. K., 12 Mad., 475 (1889).
Specific Belief An owner of land has a right to bring a suit under section 42 of the Speci-
^bnnVction** ^c Relief Act against any one of the public who formally claims to use such
to alleged high- land as a public road, and who thereby has endangered the title of the owner.
w*y- To such a suit it is unnecessary to make the Secretary of State a party. Such
a suit is not barred by an order of a Criminal Court under section 137 of the
Criminal Procedure Code, 1882. Chuni Loll v. Ram Kishen Sahn. T. L. I?.,
15 Cal., 460 (1888).
Ss. 1 40- 1 4 1.] Prevention of Offences. 131
A Subdivisional Magistrate having made a conditional ordtr, under sec- Conditional or-
tion 133 of the Cole of Criminal Procedure, 1882, against a person to abate a i"^tnu^-
nuisance or appear and show cause before a second-class Magistrate why the cond-cI»»».
order should not be enforce 1, the said person appeared as directed and the
order was made absolute under section 137. The second-class Magistrate
then issued a notice and order under section 140, requiring the nuisance to be
abated within a certain date. The District Magistrate having referred the
case on the ground that the second-class Magistrate had no jurisdiction to
pass final orders in such cases : Held, that the order was not illegal. Nara-
simha, in re I. L, R., 9 Mad., 201 (1886).
On the 11th August, 1879, the defendant, as a Magistrate in charge of a Order of M»-
taluka, made an order under sections 523 and 526 of the Criminal Procedure ôvalô'f0* ob"
Co le, 1872, directing the plaintilf to re nove a certain "ota" on the ground that struction from
it had been built upon a public thoroughfare. The plaintiff thereupon sued Pub!!'gjj,™0,^|jl
the Magistrate for a declaration that the " ota" and site belonged to him, uMishUrucl?t?*"
and prayed for a reversal of the Magistrate's order. The Assistant Judge,
who tried the suit, dismissed it, holding that it did not lie against the defen
dant On appeal .to the High Court, following the decison in Nilkanthapa
MalkpajM v. The Magistrate (first-class) in charge ofSholapur Taluba (I.L.R.,
6 Bom., p. 670), reversed the decree of the Assistant Judge, and remanded
the case, in order that the plaintiff might amend his suit by striking out the
name of the first-class Magistrate as defendant, and substituting in that
capacity the Secretary of State for India in Council, and directing the lower
court to determine the suit upon its merits after the above amendment and
due service of process. Baluram Chatrukalal v. The first-class Magistrate in
charge of Taluka Igatpuri, I. L. R., 6 Bom., 672 (1882).
A Civil Court is not competent to set aside the order of a Magistrate Jurisdiction -
made under section 521 of the Code of Criminal Procedure, 1872, on the HowtorfltSuw
ground that such order was made without jurisdiction because the land in res- 0f Matcixtrato
pect of which the order was made is private property, and not a thorough- thcrron binding;
fare or public place. A Civil Court can, however, irrespective of an order 011 u '
mado under section 521 by a Magistrate, try the question, whether the land
which formed the subject of such order is private property, and not a tho
roughfare or public place, as between the parties to such suit and those who
claim under them. Per Field, J.—A person who, on receipt of an order made
by a Magistrate, under section 521 of the Code, declaring the existence of a
right of way over such person's lands, demands, under section 523 of the same
Code, the appointment of a jury to try whether such order was reasonable,
is not by such action estopped from afterwards bringing a suit in a Civil
Court, seeking to establish his right to the exclusive enjoyment of the same
lands. Mutty Ram Sahoo v. Mohi Lull Roy, I. L. R., 6 Cal., 291 (1880).
Where a party objects to the verdict of a jury, he ought to give the Jury -Verdict
Magistrate reasonable prima facie ground for the opinion, either that the jury
did not, in fact, apply a judicial discretion to the case, or that the verdict was
such as the jury could not have arrived at by a proper exercise of their discre
tion upon the materials before them. Bindabun Chunder Dittt v. Dwarka Nath
Sen, 23 W. R., 15 (1875).
141. If the applicant by neglect or otherwise prevents the Procedure on
appointment of the jury, or if from any cause the jury appointed '"tftuTi0 ap|K)-
roromis-
do not return their verdict within the time fixed or within such j'°j,',:l,°,r
> return
verdict.
further time as the Magistrate may in his discretion allow, the
Magistrate may pass such order as ho thinks fit, and such order
shall be executed in the manner provided by section 140.
1 32 Prevention of Offences, [Chap X.
Nuisance — Id referring a. case regarding a nuisance to arbitrators under section 310,

Arbitrators- Code of Criminal Procedure, 18()i, a Magistrate should fix a time within which
Procedure. the arbitrators are to send in their award ; and this must he done whenever
from any cause the constitution of the jurors is changed and a fresh juror is
appointed. When? this is not done, a Magistrate cannot carry out his original
order if there is any delay in the submission of the award by the arbitrators.
In re Shamakant Bundopadhya, 14 W. B., 69 (1870).
Local nuisance. The Magistrate of a district issued an order, under section 308 of the
Code of Criminal Procedure, 1861, calling upon the petitioner to remove a
building, on the ground that it was an unlawful obstruction upon a highway.
A jury of five persons was appointed by the Magistrate's successor, under sec
tion 310, to report, within fifteen days, whether the order was reasonable and
proper. The jurors, being without instructions, took different views as to the
performance of their duties ; but four of them visited the premises, and were
unanimous in finding that the building complained of was not on a high road
at all. Five days after receiving reports to this effect, the Magistrate issued
another order to the petitioner, requiring him to pull down his house within fif
teen days, as the jurors had made no report within the time prescribed. The peti
tioner showed cause under section 313, but without effect* ; and the order was
repeated. The Sessions Judge, meanwhile, upon application of the petitioner,
called for the proceedings under section 434 ; but the Magistrate wrote, ques
tioning the Judge's authority to interfere ; and without waiting for a reply,
proceeded to try the petitioner for disobedience to an order duly promulgated
by a public servant, and sentenced him to twenty-five days imprisonment
under section 188 of the Penal Code. His house was also pulled down. The
proceedings were ultimately forwarded to the Sessions Judge, whoso succes
sor in office returned thein with the remark that nothing appeared to have
been done contrary to the law for removal of nuisances. Held, reversing the
conviction, that the Magistrate ought at once to have complied with the pre
cept of the Sessions Judge, under section 434 : and that ho was not warranted
in convicting and imprisoning the petitioner for disobeying an order, the lega
lity of which was then properly under the consideration of an appellate court.
Held, also, that the petitioner had shown sufficient cause to satisfy the Magis
trate, under section 313, that the order to pull down the house was "not
reasonable and proper." Reg. v. Dalsukram Haribhai, 2 Bom. H. C, 384
(1866).
injunction 14Z« (/) If a Magistrate making an order under section 183
quiry.ng considers that immediate measures should bo taken to prevent im
minent danger or injury of a serious kind to the public, he may,
whether a jury is to be, or has been, appointed or not, issue such
an injunction to the porson against whom the order was mad*>, as
is required to obviate or f revent such danger or injury pending
the determination of the matter.
(2) In default of such person forthwith obeying such in
junction, the Magistnto may hints df use, or cause to be used,
such means as he thinks fit to obvi ifce such danger or to prevent
such injury.
(3) No suit shall lie in respect of anything done in good
faith by a Magistrate under this section.
for farm "/ injunction to provide apaiiut imminent danger pending
innuiry, see schedule V, <Vo. 10.
Ss. 142-143.] Prevention of Offences.
An owner of land Ims a right to bring a suit under section 42 of the Speci- Obstruction to
lie lielief Act against any one of the public who formally claims to use such ^'p^fi,!"*1'-""5
land as a public road, and who thereby has endangered the title of the owner.
To such a suit it is unnecessary to make the Secretary of State a party. Such
a suit is not barred by an order of a Criminal Court under section 137 of the
Criminal Procedure Code, 1882. Chuni Lull v. Ram Kishcn Sahu, I. L. R.,
15 Cal., (F. B.) 460 (1888).
An order by a Magistrate under section 521 of the Code of Criminal Pro Kuisimcc-Obs-
cedure, 1872, for the removal of a nuisance does not become absolute until troction— Pub-^
an opportunaty is given to the persons affected by it to show cause why the pLobrXonecof
order should not be carried into effect. No order can be made under section orders.
528 of tho Code, unless there is imminent danger or fear of injury of a serious
kind to the public involved in the case ; and where a Magistrate, who had
made an order under section 521, subsequently directed further enquiry to be
made, it was held that he must be considered to have abandoned his proceed
ings under soction 528, and that he should have proceeded under section 525
instead of fining the party charged under section 188 of the Penal Code.
The Queen v. Brojendro Lai, 21 W. B., 86 (1874).
Section 314 of the Code of Criminal Procedure, 1861, authorizes the Local nuisance- -
Magistrate to take immediate measures to prevent imminent danger pending JjSJmJJIt o* ta-
the enquiry of a jury, but not where no jury has been appointed, and after junction,
the danger was passed away. Queen v. Rajah Indoobhooshun Deb Roy, 1 W.
It., 8 (1864).
143. A District Magistrate or Subdivisional Magistrate, or Manilarate m»»
any other Magistrate empowered by tho Local Government or the Ron wcont^l-
District Magistrate in this behalf, may order any person not to nu"™,"o.l>ublic
repeat or continue a public nuisance, as defined in the Indian
Penal Code or any special or local law.
For form of Magistrate's order prohibiting the repetition, <ye., of a
?iuisance, see schedule V, No. 20.
[268 (P. C). A person is guilty of a public nuisance who does [Pui.ij,. nuj.
any act, or is guilty of an illegal omission, which causes any common sauce. 1
injury, danger, or annoyance, to the public or to the people in general
who dwell, or occupy property, in the vicinity, or which must necessarily
cause injury, obstruction, danger, or annoyance, to persons who may
have occasion to use nny public right.
A common nuisance is not excused on the ground that it causes
some convenience or advantage.]
On 11th August, 1894, the District Magistrate promulgated an order Public nuisance
prohibiting the people of the village of Thirukodikaval from using their Disobedience
burning grounds situate ! on the southern bank of tho Cauvcry, and directing to an order duly
them to uso other burning grounds which had been provided. On the 11th pro,u5ic*8erv!mt'
May, 1895, certain pursons, in defiance to this order, cremated a corpse at the ttpu
interdicted spot, and were convicted under sections 188, 200, Penal Code, but
the conviction under section 188 was reversed on appeal: Held, that when per
sons entitled to use a particular spot dedicated for the communal purpose of
cremation, use it for that purpose in a manner neither unusual nor calculated
to aggravate the inconveniences noeessarily incident to such an act as it is
generally performed in this country, they cannot be convicted of a public
nuisance on the ground that tluir act caused material annoyance and dis
comfort to persons near the place on the occasion- referred to :- Held, further,
»34 Prevention of Offences. [Chap. XI.
that the order of the District Magistrate was not warranted by section 143,
Criminal Procedure Code, 1882, or by any other law, and must, therefore, be
set aside. Queen-Empress v. Saminadha Pillai, I. L. R., 19 Mad., 464
(1896).
Repeating or To support a conviction under section 291 of the Penal Code, there must
continuing pub- be proof of an junction to the accused individually against repeating cr con-
Injunotton^by tinuing the Bamc particular public nuisance. It must be shown that the per-
publio servant son convicted haa on some previous occasion committed the particular nui-
not to repeat or sance, had been enjoined not to repeat or continue it, and had repeated or
Miice?Ue UUI" continued it. The authority under which a Magistrate can order or enjoin a
person against repeating or continuing a public nuisance is section 143 of the
Criminal Procedure Code. It is the infringement of this order that is punish
able under section 291 of the Penal Code What is contemplated in an order
addressed to a particular person? A Magistrate's power to deal with public
nuisances are contained in Chapters X and XI of the Criminal Procedure Code,
1882. Chapter XI is only properly applicable to temporary orders in urgent
cases. It is only in such cases that an order may be made ex parte, and any
exception is allowed to the general rule that it shall be directed to a particular
individual. In such emergent cases an order may, under section 144 of the
Code, be directed to the public generally, when frequenting or visiting a
particular plice, to abstain from a certain act ; but this provision does not
apply to a proclamation directed not to the public generally frequenting or
visiting a particular place, but to a portion of the commuuity. Queen-Empress
v. Jokhu, I. L. K., 8 All., 99 (188b;.
Order of Magis- Before a person can be legally punished for refusal to remove and re-
trate for removal construct roof-drains, evidence ought to be taken whether the party has dis-
and reconstrac- obeyed the Magistrate's order, and that such disobedience has produced, or
drain»°- Public i* likely to produce, harm Qucere.—Whether such an order, under section 73
uuijanee. of the Code of Criminal Procedure, 1861, is legal, as that section refers to
public nuisances. Queen v. Shabuckram Dukoolee, 2 W. B., 32 (1865).
CHAPTER XI.
Temporary Orders in Urgent Cases of Nuisance or
Apprehended Danger.
Power to issue 144, (D In cases where, in the opiuion of a District Ma-
order absolute gistrate, a Chief Presidency Magistrate a ûbdivlsional Magistrate,
gem cases of mil- or of any other Magistrate specially empowered by the L. cal
bSSStiSSt^ Government or the Chief Presidency Mngistrate or the District
Magistrate to act under this section, immediate prevention or
speedy remedy is desirable,
such Magistrate may, by a written order stating the material
facts of the csise and served in manner provided by section 134,
direct, any person to abstain from a cert .in act or to take certain
order with certain property in his possession or under his manage
ment, if such Magistrate considers that such direction is likely to
prevent, or tends to prevent, obstruction, annoyance or injury, or
risk of obstruction annoyance or injury, to any person lawfully
employed, or danger to human life, health or safety, or a distur
bance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency

or in cases where ths circumstance* do not admit of the serving
in due time of a n <tice upon the person against whom the order is
directed, be passed ex parte.
(3) An order under this section may be directed to a parti
cular individual, or to the public generally when frequenting or
visiting a particular place.
(4) Any Magistrate may rescind or alter any order made
under this section by himself or any Magistrate subordinate to
h!m, or by. his predecessor in office.
(<5) No order under this section shall remain in force for
more than two months from the making thereof ; unless, in cases
of danger to human life, health or safety, or a likelihood of 11 riot
or an affray, the Local Government, by notification in the official
Gazette, otherwise directs.
For form of Magistrate's order to prevent obstruction, riot,
Sfe.. see schedule V, No. 21.
A Magistrate making an enquiry before issue of an order under section Enquiry before
144, Criminal Procedure Code, 1882, is acting in a stage of a judicial proceed- iwueof an order
ing, and has, therefore, jurisdiction to take action under section 476, if he is ™jdudic1a110pro^
of opinion that false evidence has been given before him. Queen-Empress v. ceediim-F»ue
Tirunarasimha Chart, I. L. R-, 19 Mad., 18 (1895). evidence.
The District Temple Committee dismissed the trustees of a certain temple Disputed poases-
and appointed others.become
The imminent
dismissed in
trustees retained
of possession A breach {'"'ifT1?*^8'0"
of the peace having the opinion a Deputy Magistrate, y Court,
he made an order under Criminal Procedure Code, 1882, section 14*, direct
ing the newly-appointed trustees not to interfere with the temple or its man
agement. Held, that the High Court had no power to interfere in revision
under Criminal Procedure Code, section 435. Palaniappa Chetti v. Dorasami
Ayyar, I.L. K., 18 Mad., 402 (1895).
A District Magistrate has no power cither under section 144 of the Code Magistrate of
of Criminal Procedure, 1882, or in his executive capacity to make an order for powersôf— Exe-
the re-building of a structure on private land which has fallen into disrepair eutivc powers of
or been pulled down, neither has he power to make any order which would orêr^which
have the direct effect of interfering with the execution of a decree of a Civil might have tho
Court. In re Rahmat-ullah, I. L. R., 17 All., 485 (1895). eir« t of inter-
feruig with the
execution of a
decree of a Civil
Court.
An order forbidding a person who claimed an interest in certain properties Charter Act (U
from collecting any rent from the ryots on the properties, does not fall with- foy êcUon
in section 144 of the Code of Criminal Procedure, 1882. Such an order is Order prohibit-
therefore made without jurisdiction, and may be set aside under the High ^n^'Jê0"
Court's powers of revision und superintendence conferred by section 439 of the p^ruTy o'rdersni
Criminal Procedure Code und section 15 of the Charter Act. Chapter XI cf urgent cases of
the Code of Criminal Procedure refers to interference or dealing of some kind J^JJ10^^}^
with the land itself or with some thing erected or standing upon it, and is and superinten-
directei to the prevention or direction by prompt order of some denuite act uîf court"1*
on the part of an individual so that injury or nuisance may not be caused.
Ananda Chandra Bhuttacharjee v. Carr Stephen, I. L. R., 1» Cal., 127
(1891).
'36 " Prevention of Offences, [Chap. XI.
Puwcr ut tlie The eity of Alimedabnd being threatened with an outbreak of cholera
suppress' caste" l',e President of the local Municipality, acting under section 73 of Bombay Act
feasts on the VI of 1873, issued an order, in the form of a proclamation, prohibiting the
outbreak of cho- holding of caste-feasts when over thirty persons were to assemble. After
the proclamation of this order the accused gave a feast in a private house to
upwards of thirty people of his caste. He was thereupon convicted, under
section 188 of the Penal Code, for disobedience of an order duly promulgated
by a public servant, and sentenced to pay a tine of Its. 35. Held, reversing the
conviction and sentence, that section 73 of the Bombay District Municipal
Act, VI of 1873, did not empower the Municipality to place an interdict on
people meeting to eat and drink in their own houses. The words in the
section, "take such measures as may be deemed necessary to prevent, meet,
or suppress the outbreak," imply in themselves something actively to be
done by the Municipality, rather any limitation to be imposed on the private
rights of the citizens in their relation of daily life. Special measures for
the health of the town—such as sulphur fumigation, daily (lushing of sewers,
insistence on good house sanitation, isolation of infected districts and other
similar steps to be taken by the authorities themselves—fall naturally within
the meaning of the terms of the section. The Court ought not to strain an
act in favour of an interference with private rights which is not justified by
the primary sense of the language. Queen-Empress v. Harilal, I. L. It., 14
Bom., 180 (1889).
MaRisl rate's an- Owing to the prevalence of cholera, the District Magistrate of Broach
thority to prohi- issued an order, in the form of a proclamation, under section 144 of the Cri-
i^nemlly Pf™ miual Procedure Code, 1882, forbidding the public generally to give caste-
itivinK caste- dinners in the city. The order was posted in different quarters of the city,
dinners-Notice, including the street in which the accused had his dwelling-house. A few
days after the proclamation of this order, the accused gave a feast in a
private house to about 500 people of his caste. He was thereupon convicted
of disobedience to on order duly promulgated by a public servant under
section 188, clause (6) of the Penal Code and sentenced to a fine of Its. 35.
Held, reversing the conviction and sentence, that the District Magistrate's
order was, both in its substance and in its manner of publication, illegal, as
being beyond the powers conferred by section 144 of the Code of Criminal
Procedure. The power of the Magistrate under that section is confined to the
direction of a particular person to abstain from acts of a certain character, or
to the public generally to abstain from, similar acts when frequenting a
jmrtictdar place. Queen- Empress v. Lakhmidus Mohandas, I. L. R., 14
Bom., 165 (1889).
Superinten- A Deputy Commissioner passed an order, under section 144 of the
Court -Onle'rlo ÛI'e °^ Criminal Procedure, 1882, prohibiting a person from collecting any
abstain from rent or attempting to collect rent, either herself or through any of her
certain act. officers or servant, from the ryots of two specified pcrgunnuhs. And also
from effecting any sale or putting in hand any transaction with regard to
Standing trees, or collected timbers in an estate, or erecting any tuhla or
kuchari in such pergunnalis for a period of two months. Upon an applica
tion to set aside such order—Held, that the High Court had jurisdiction,
under section 15 of the Charter Act, to set it aside if it were made without
jurisdiction. Hell , further, that the acts which the petitioner was directed
to abstain from were not acts which came within the meaning of the words
" a certain act " as used in section 144 of the Code of Criminal Procedure,
and that the order should bo set aside. Abayeswari Debi v. Sidhesicari Debt,
I. L.R., lGCal., 80(1888.)
Disobey-in* or- A District Magistrate, by an order made under section 144 of the Crimi-
derofmiblicser- nal Procedure Code, 1882, after stating that it appeared that one "(? CS
»3/n-ÔrdCTepro- ,m9 recently established a hat at S in the vicinity of K, an old-established
hibitinff liold- hat, and held if on the same days, and that in consequence of the establish
ing of hdi. ment of the new hat, and the endeavours made to induce or force people to
frequent the new hdt instead of the old one, a serious breach of the peace or
riots are. imminent," ordered "that the said G C S and all other persons abstain
from holding such hdt " oh those days. The order was duly made and pro
mulgated, but not strictly in accordance with section 134 of the Code, and
the orders of Government made thereunder. Notwithstanding the order,
one P C A was found exposing goods for sale as a trader at the hdt on one of
the prohibited days, and he was thereupon charged with disobeying the order
of the Magistrate, and convicted of an offence under section 188 of the Penal
Code. Held, that the conviction was bad, as P C A did not oomo within the '
description of the persons intended by the order to be prohibited from " hold
ing" the hdt, which referred to "holding" as owner or manager, not as a trader.
Held, also, that the terms of section 134 of the Code, and the notification made
by Government thereunder as to promulgation and issue of an order, arc direc
tory, but an omission to follow strictly such direction, though it is an irregula
rity, does not invalidate the order. Where therefore it is shown that the order
has been brought to the actual knowledge of the person sought to be affected
by it, such omission does not prevent the case coming within section 188 of
the Penal Code. L'arbulty Charan Aich v. Queen-Empress, I. L. K., 16 Cal.,
9 (1888).
In 1870 a Magistrate passed an order under section 518 of the Code of Cri- Duration of Ma
mmal Procedure, 1872, directing the Saraogis of Eta to take one of their annual »'8tratc'8 ordor-
religious procession along a particular route and at a particular hour. In 1886.
in which year there was no fresh proclamation of the order, the Saraogis took
their procession along another route and at a different hour, and for so doing
some of them wore convioto 1 and sentenced under section 188 of the Penal
Code. Held, that the conviction was wrong, the order of 1876 having a tem
porary operation only. Queen-Empress v. Sheodin, I. L R., 10 AH., 115
(1887).
To support a conviction under section 291 of the Penal Code, there must Puhlic nui-
be proof of an injunction to the accused individually against repeating or SJ^JSfinJSw?
continuing the same particular public nuisance. It must be shown that the Injunction by
person convicted had on some previous occasion committed the particular repoT'or
nuisanco, had been enjoined not to repeat or continue it, and had repeated or continue nui-
continuod it. The authority under which a Magistrate can order or enjoin a amice,
person against repeating or continuing a public nuisance is section 143 of the
Criminal Procedure Code, 1882. It is the infringement of this order that is
punishable under section 291 of the Penal Code. What is contempleted is an
order addressed to a particular person. A Magistrate's powers to deal with
public nuisances are contained in Chapters X and XI of the Criminal Proce
dure Code. Chapter XI is only properly applicable to temporary orders in
urgent cases. It is only in such cases that an order may be made ex parte,
and any exception is allowed to the general rule that it shall be directed to a
particular individual. In such emergent cases an order may, under section
144 of the Code, be directed to the public generally, when frequenting or visit
ing a particular place, to abstain from a certain act ; but this provision does
not apply to a proclamation directed not to the public generally frequenting
or visiting a particular place, but to a portion of the community. Queen-Em
press v. Jokhu, I. L. 11., 8 All., 99 (1886).
In affording special protection to persons assembled for religious worship or Public worohjp
religious ceremonies, the law points to congregational rather than private p^^^treet-
worship, and it may fairly be required of congregations that they should in- buty of Miuri«-
form the Magistrate or Police at what hours they customarily assemble for *™J^ê"h^^
worship, in order that the rights of other persons may not be unduly curtailed, toned.
No sect is entitled to deprive others for ever of the right to use the public
streets for processions, on the plea of the sanctity of their place of worship,
or on the plea that worship is carried on therein day and night. The duties
of; a Magistrate in cases where the public peace is likely to be disturbed by
Prevention of Offences. [Chap. XI.
one sect attempting to prevent another from using the public streets for pro
cessions discussed. Sundram Lhetti v. The Queen ; Ponnutami Chetti v. The
Queen,!. L. R., 6 Mad., 203 (1882-1883).
JurMlctlou - A Magistrate has no jurisdiction to make an order under section 518 of
n£££tTn tlie Co,ia of Criminal Procedure, 1872. merely for the protection of property,
pr p^j. rh Empreu y Prayag Sillghi I, l. R., 9 Cat, 103 , 1882).
Injunction— On the 7th of June, 1881, the Assistant Commissioner of Hylakandi, in

^<<rir3tTor 8ylhet, passed an order under section 518 of the Criminal Procedure Code,
dar which h ii 1872, that the manager of a certain tea garden should discontinue holding a
if?" ("■o,urt<M - miirket on Thursday until further notice. On the 25th of August, 1881, the
peThitendenc"" Assistant Commissioner reviewed this order, and having come to the conelu-
of -tt>terjn.'c sion that he had no power to issue a permanent injunction, struck the case off
—Oh irtor Act. tj,e g|6) at the same time referring the matter to the Deputy Commissioner.
The latter declined to interfere, informing the Assistant Commissioner that he
saw no illegality in his order. Thereupon the Assistant Commissioner passed
an order declaring that his order of the 7th of June, 18*1, remained in full
force. On a reference to the High Court, made by the Officiating Sessions
Judge of Sylhet under section 297 of the Code -held, that the Magistrate
having, on the 25th of August, 1881, set aside his order of the 7th of June,
1881, and struck the case off tlie tile, he had no power to revive it withoct a
fresh proceeding, lleli, also, that the Magistrate had no power to pass a per
ianal injunction under section 518 of the Code. Held, that orders made
under section 518 of the Code not being orders made in a judicial proceeding,
the High Court had no power to deal with thorn under section 297 of the
Code ; but the order of the 6th of September, 1881, being illegal, the High
Court would set it aside under section 15 of the Charter Act, 24 and 25 Vict.,
C, 104. Bradley v. J. Ameson, I. L. R., 8 Cal., 580 (1882).
Disputed pos Where a dispute arises as to the right to the possession of lands and
session —Riot
imminent -Abs buildings, a Magistrate, if he considers a collision between the parties and a
tention from a serious breach of the peace imminent, may properly proceed under Chapter 39
rertaiu net. instead of Chapter 40 of the Criminal Proce lure Code, 1872. If the Magis
trate had jurisdiction, the proeoe lings, not being judicial, cannot be revised
by the High Court An order to abstain from interference with a temple and
its property is an order to abstain from a "certain act" within the meaning of
the Criminal Procedure Code. Elavarisu Vnnanum-tlui Ranianuja Jeeyar-
tvami v. Vanantamalai Rumanuja Jeeyar, I. L. R., 3 Mad., 354 (1881).
Order prohibit In case of a dispute between rival parties as to the payment of rent by
ing collect ion of
rent. tenants, a Magistrate lias no power under section 518 of the Code of Criminal
Procedure, 1872, to make an order that no rents should be collected until
sncli time as the right and title of both parties should have been established
by order of a competent court, and a conviction under section 188 of the
Penal Code for disobeying such an order cannot be sustained. Prosunno
Commar ChalUfjet v. The Empress, 8 Cal. L. R., 231 (1881).
Order by execu Where an executive officer makes order or issues a notification under the
tive om c e r —
Power of Judi provisions of the Code of Criminal Procedure, 1872, it is not within the pro
cial Court* tn
question the vince of judicial authority to question the propriety or legality of such order.
legality of unit The E-npresn v. Hiirjanarain, 1. L. R., 6 Cal., 88 (1880).
order.
Obstruction - Before a Magistrate can make an order under section 521 of the Code of
Hath way- -Order
of Muristr.ite- Criminal Procedure, 1872, to remove an obstruction from a path alleged to be
Filnctions of ju public thoroughfare, he must tirst, in a proceeding held under section 532,
ry - Piwjiuro ahave come to the conclusion that the path is open to the use of the public.
to l>c observed
by Magistrate. The only functions which a jury appointed under section 523 can exercise,
are to consider whether the order made by the Magistrate under section 521
is reasonable and proper, it being no part of their duty to determine the rights
S. 144.] Prevention of 0fences. 139
of parties in property. Held, therefore, that w> ere a Magistrate, through a

mistaken view of the law, ordered the removal of an obstruction on a path
way under section 521, and had further submitted this order to the consider
ation of a jury appointed under section 523, before he had himself come to
a conclusion whether such pathway was a public thoroughfare, the only course
left open to him under such circumstauces was to stay all proceedings initiat
ed under Bection 521. and take action under section 532. In re Chundernath
Sen, I. L. K., 5 Cal., 875 (1880).
An order of the Magistrate directing that all music should cease when any >[HSic.
procession is passing a certain place of worship, held tdtra vires. Muthialu
Chetti v. Bapun Saib, I L. R., 2 Mad., 140 (1880).
Per Ainslik, J.—In dealing with the civil rights of a subject under Limitof ordera.
section 518 of the Criminal Procedure Code, 1872, it is incumbent on the
Magistrate to limit the operation of his order to such reasonable time as may
be necessary to enable him to hold a full and sufficient enquiry as to whether
the act prohibited as likely to cause a breach of the peace is within, or is in
excess of, the legal right of the person forbidden to do it ; and, if necessary,
to deal with the case under the other provisions of the Code, which enable him
to meet case9 of probable breach of the peace. Per Brodghton, J.—Where
an order on the face of it appears to have been made without jurisdiction, no
subsequent explanation can make it good. In re Abdool v. Lucky Narain
Mundul, I. L. It., 5 Cal., 132 (187-9).
A Magistrate is not empowered to pass an order under section 518 of the Powenot Stasis-
Code of Criminal Procedure, 1872, which has more than a temporary operation : '"'•<■ to f»*> <»•
the grant of what is in effect an order for a perpetual injunction is entirely "'(iMioidprj
beyoud his powers. When a plaintiff alleged that he had held a hdt on his l)ecl.irotor>:
own land for many years on Tuesdays and Fridays ; that the defendant had ll<*rce-
set up a rival hat on these days and prevented persons from attending the
plaintiff's hat ; that this led to disturbances which ended in an order being
made by the Magistrate prohibiting the plaintiff from holding his hdt on the
Baid days, and that the plaintiff suffered loss and damage in consequence,—
Held, that assuming these facts to be true the plaintiff was entitled to a
decree, declaring as against the defendant, that the plaintiff had a right to
hold his hdt on Tuesdays and Fridays. Gopi Mohun Mutlick v. Taramou!
Choicdhrani, I. L. 15., 5 Cal., 7 (1879).
Where a Magistrate made an order under section 518 of the Code of Crimi- H<u. removal
nal Procedure, 1872, directing one of two rival hdt proprietors to remove l is I^j^siUo'umi!6
hdt to such a distance as to render it useless for the purposes for which it
was established, it was h Id that the order came within the purview of the
Full Bench decision of Gopi Mohun Moulik v. Taramoni Choicdhrani, 4 C.d.
L. K , 309, and might bo set aside as in excess of jurisdiction. Surut Chunder
Bamrjee v. Bama Chum Alookerjee, 4 Cal. L. R., 410 (1879).
A Magistrate has no power, under section 518 of the Code of Criminal Power ot Ma*i»-
Procedure, 1872, to make an order prohibiting one of two rival proprietors of ^*Je—Rivnl
two different hrits from holding for the future his hdt on Tuesdays and Fridays,
such an order being in the nature of a perpetual injunction, and entirely
beyond his jurisdiction. Where the plaintiff, after stating in his plaint that
for many years he had held a hdt on his own lands on Tuesdays and Fridays,
alleged that ihe defendunt Ind set up a rival hdt on the same days, and en
deavoured to prevent people attending his hdt, thereby causing a disturbance
which led to the Magistra-e passing an order under section 518 of Act X of
1872, prohibiting hi::: (the plaintiff) for the future holding his hdt on these
days, held that, assuming the facts to be true the plaintiff was entilled to a
decree declaring that as against the defendant he had a right to hold his hdt on
Tuesdays and Fridays. Gopi Mohun Moulik v. Taramoni Choicdhrani, 4 Cal.
L. R., 309 (1879).
Prevention of Offences. [Chap. XI.
Jurisdiction of Where special 'damage is caused to any person by an obstruction placed

Encroachmont- llPon a public thoroughfare, lie is entitled to bring action in the Civil Court
on public f°r 'he purpose of having the nuisance abated, notwithstanding the provisions
thoroughfare- of section 518 and the following sections of the Criminal Procedure Code,
—Tbatcmcnt'o" ^^72, for summary proceedings before a Magistrate, and notwithstanding that
nuisance-Right he may be entitled to damages. A question arising from a conflict of opinion
Uce^fSnluctoi between individual Judges is not, properly speaking, the subject of reference
opinion between '° a Full Bench. Raj Kcomar Singh v. Sahebzada Roy, I. L. B., 3 Cal.,
individual 20 (1877).
Judge «—lie-
ference to Pull
Bon3n- m •
Court of Rati- The existence of the circumstances mentioned in explanation I. is a con-
pwoed'!ngs'.al ditiou preoedent to the action of a Magistrate under section 518, Code of
Criminal Procedure, 1872. If the matter is one which cannot properly be
dealt with under section 518, it does not fall within that section, and being a
judicial proceeding, is not protecte 1 by section 520 from the action of a Court
of Revision under section 297. In re Krishna Mohan Bysack, 1 Cal. L. B.,
68 (1877).
SupeMnten- The High Court cannot interfere, under section 15 of the Charter Act,
dence of High with orders duly passed by a Magistrate under section 518 of the Criminal
Pourt. Procedure Co le, 1872. In re Chumhr Nath Sen, I. L. B., 2 Cal., 293 (1876).
Prohibitory Before a prohibitory order under section '518, Criminal Procedure Code,
oruer. 1872, can be made there ought to be information or evidence before the
Magistrate that the act prohibited was likely to cause a riot or affray, and
that the stoppage of that act would prevent such riot or affray. Gotham
Luck nun Perahad Pooree v. Pohoop Narain Pooree, 24 W. B., 30 (1875).
Disobedience of To support a conviction, under section 188, Penal Code, there must be
servanti-ULocal ev'l'once 'hat the order has been promulgated by a public servant lawfully
nuisance—Mar- empowered to promulgate such order. Section 518 of the Code of Criminal
ketduea. Procedure, 1872, which relates to local nuisances, has no application to a case
like this, which refers to the collection of market dues. The Quten v. Subun
Singh, 23 W. B., 57 (1875).
Obstruction. A Magistrate's jurisdiction under section 518, Criminal Procedure Co le,
1872, to direct the removal of an obstruction is confinod to cases where there
has been annoyance or injury to any person lawfully employed, or danger to
human life, health, or safety, or where there is a probability of a riot or
affray. Sree Nath DM v. Unnoia Churn Dutt, 23 W. B., 34 (1875).
High Court The fact that an order of the Magistrate is not a judici d proceeding, and
Charter a c t, therefore not one which the High Court can revise under section 207 of the
Judical1 pro- ^'ode °^ Criminal Procedure, 1872, does not have the elfect of removing
coeding. the Magistrate from the general superintendence of that Court under section
15 of its Charter Act. Chunder Coomar Roy v. Omesh Chunder Mojoomdar,
22 W. B., 78 (1874).
Hit—Jurisdic- The operation of section 518 of the Code of Criminal Procedure, 18 "2, is
tion of Magis- confined in cases where, in the opinion of the Magistrate, the dohiy which
trate. would be caused by adopting a different procedure from that prescribed in the
explanation to that section would " occasion a greater evil than that suffered
by the person upon whom the order is made, or would defeat the intention of
this (the 39th) Chapter." Where a Magistrate, without hearing the petitioner,
or giving him an opportunity of being heard, and simply upon the foundation
of a police-officer's report, directed the petitioner to abstain from holding a
hat upon his land on a certain day, because another party had long been
accustomed to hold a hdt upon his iand adjacent to the petitioner's hdt on
the day following that in which the petitioner held his hit,.it was held that
S. 144 1 Prevention of -Offences
his order pissed un ler section 518 was ultra vires, the poliee-officer's report
being vague and insuffi;ient, and private interest of the kind not affording a
ground for making an order under section 518, or any other order under the
Criminal Procedure Code. Banee Madhub Gliose. v. Woonui Nath Roy Chow-
dhry, 21 VV. R., 26 (1874).
Any person is entitled to establish a market on his own land, and the mmt^ôntcr
owner of a neighbouring market has no right of suit for the loss which may of Maipstrnts -
ensue from the establishment of the new market. The legality of an order Jurwdjctionôf
made by a Magistrate under section fi2 of the Code of Criminal Procedure, Market'* ~
1861, can be questioned in the Civil Court. The Civil Courts are, however,
bound to respect an order passed by a Magistrate when he is acting within
his jurisdiction, i.e., within the powers conferred on him by law, and if nis
proceedings show due diligence in satisfying himself of the necessity of the
order, they cannot question his discretion. In a suit to establish his right to
continue a market and to hold it on certain fixed days, by cancelment of the
order of a Magistrate directing that it should not be held on those days for
fear of riot, and of loss to the owner of another market, the plaintiff's right to
hold the market on the days named in the plaint was decreed subject to the
prohibition created by the order of the Magistrate. Ketlarnath v. Rughonath, -
6 H. C, N.-W. P., 104 (1874).
In a case in which the Magistrate passed an order under section 518, thopeSc™°Ch
Code of Criminal Procedure, 1872, for closing a hat, on the ground that it
was only a mile apart from another hdt, and a breach of the peace was not
unlikely, the Sessions Judge recommended that the order should be set aside,
section 518 applying only when a breach of the peace was imminent. Held,
that, under Explanation II., section 518, the order could be made in all cases
upon such information as satisfied the Magistrate, and as the order was one
which the Magistrate had power to make, and was not contrary to law, the
High Court could not, under section 297, Code of Criminal Procedure, set it
aside. Orders under section 518 are not judicial proceedings, and therefore are
not within section 297. Bkolanath Base v. Komuruddin, 20 W. R., 53 (1873).
Section 62 of the Code of Criminal Procedure, 1861, does not apply to Private dispute
a private dispute between two p irties relative to a path. Nilkomal Moolcho- °b,tn,ctl0"-
padhya v. Anund Chunder Lushkui; 19 \V. R., 6 (1872).
A Magistrate or other officer exercising the powers of a Magistrate is Breach of the
legally competent, under section 62 of the Co le of Criminal Procedure, 18 1, Pe»ce-Riot-
to issue an order prohibiting a landholder from holding a hdt on any parti
cular spot, on his estate on particular days, on the ground that such an order
is likely to prevent a riot or an affray. Bykunt Ran Shahu Roy v. Meajan,
18 W. It., (F. B.) 47 (1872).
The purchaser of an interest in land at a sale in execution of decree ob- e^0cc1J^ron ''jf
tame I an order for possession under section 2 i3 or 264, Act VIII of 1859, and decree -Posses-
a dispute arose between him and another person, who had some interest in the sion of land-
land, as to what passed under the sale-certificate. Without ascertaining the Jj^c^Jurisd'i'i"
rights of the parties, the Magistrate made certain orders, the effect of which tion of MngU-
was to exclude the auction-purchaser for some time from exercising the right trat6-
alleged to have passed to him under the purchase. Held, that the Magistrate
ought to have made no order at all with reference to the property, leaving it
to the parties to determine their rights in the Civil Court, and that he had
ample power under the section to do what was necessary to prevent a breach
of the peace. The High Court may interfere with and quash an order passed
by a Magistrate under section 62, Code of Criminal Procedure, 1861, when
the order is such that it was beyond the power and out of the jurisdiction of
the Magistrate to make it. Sheikh Laloo v. Adam Sircar ; Government v.
Surja Kant Aeharjia ; Dengoo Sheikh v. Adam Sircar, 17 W.R., 37 (1872).
142 Prevention of Offences. [Chap. XT.
Straying of cat* An order by a Magistrate, prohibiting the str iving of cattle within
1 certain local limits, is not an order within the meaning of section G2 of the Code
of Criminal Procedure, 18151. There can be no conviction for disobe lience
of such order under section 239 of the Penal Code. Qaten v. Mozafar Khalifa,
9 Ben. L. R., App. 36 (1872).
Re-calling order Where a Deputy Magistrate, without taking evidence, made an or-
—Holding a ,ier un(]er section 62 of the Cole of Criminal Procedure, 1831, changing a
day on which a hdt used to be held, an 1, subsequently, on taking evidence,
found that his first order was wrong, and passe 1 without jur s liction, he was
held to have acted properly in recalling his first order. Mahan Sirdar v. Obhoy
Churn Mooko/mdijah, 13 W. R., 72 (1870).
mowl'ofV110" There is nothing in section 62 of the Code of Criminal Procedure, 1861, to
bund. * justify a Magistrate in making an order for the removal of a bund or other
obstruction or nuisance on the mere report of a p.ilice-constable; and before
making such order he ought to take evi lence from the defendants, and, if
necessary, on both sides. Th'.Qwi v. Btt/nto Djal Sinyh, 11 W. It., 46
(1869) ; Rai Luchmeeput Singh, 14 W. R., 17 (1870)
Removal ot a Section 62 of the Code of Criminal Procc lure, 1831, does not authorize
«mll-Riot. a Magistrate summarily to direct a pars >n to remove a wall erected on laud
alleged to belong to another person, in the absence of evidence showing that
a riot or affray was likely to occur. Raihukishore v. Giridharee Sahee, 13
W. R., 19 (1870).
Order to cut Under section 62 of Code of Criminal Procedure, 1861, a Magistrate has
down tree?. no power to issue an order, ex parte, to cut down trees, on the representation of
a party, supported by the report of the police that the existence of the trees
was a nuisance. Queen v. Ram Chamlra Mtokerjee, 5 Ben., L. It., 131 (1870).
Order to pre- The power of issuing orders to prevent breaches of the place, ore, confer-
thc'peace ' °' re<1 on a Magistrate by section 62 of the Code of Criminal Pro e lure. 1861,
extends only to immoveable property of the description set forth in Chapter
22 of that Code. The Queen v Goluck Chunder Goo'io, 12 W. R., 38 (186.*).
Order to widen The temple of Pandharpur, a public temple, is visited at certain periods
3!!oVwn\\ '' ' 6 " of the year by a large concourse of pilgrims. With a view to preveut the
dangers arising from over-crowding, and to improve the ventilation, the
Magistrate F P, by a written order, under section (32 of the Criminal Proce
dure Code, 1861, directed the hereditary priests of the temple to widen ami
heighten the doorway. Held, that such order was illegal under the above
section. Semble, that the case would have been the same had the temple
been private property ; and aho, that the power of Magistrates to issue
orders under the section in question is entirely discretionary. Reg. v. Ram-
chandra Eknath, 6 Boin. H. C, Crown Cases, 36 (1869).
Obstruction- The powers of a Magistrate and the procedure to be observed by him iii
Xuiwnce- Pro issuing orders under sections 62 and 308 of the Code of Criminal Procedure,
eedure. 1861, discussed, and the difference between these sections pointed out. In r»
Huri Mohun Malo, 10 W. R., 53 (1868).
Witnetaei for Section 266 and not section 252 of the Code of Criminal Procedure,
defence. 1861, is applicable to a case under Chapter XV of that Code ; and under the
former section a Magistrate is not bound to summon the witnesses for the
defence. Reference to the High Court by the Sessions Judge of Bhaugulpore,
10 W. R., 36 (1868).
Use of musical A Magistrate cannot, under section 62, Code of Criminal Procedure, 1861.
mstrunicntii- in general terms forbid two parties to use any musical instrument in the
troto' prohibit?" neighbourhood of each other's house, though he may forbid their doing so
ing. for the purpose of mutual annoyance. In re Ram Chunder Geer Gossain,
6 W. R., 40 (1866).
S. 145 ] Prevention of Offences. 143
A Magistrate cannot, under section 62, Criminal Procedure Code, 1861, ^'j^b^td-'
interfere with the civil right of a landholder to establish hats within his hoklers.*
estate, and to hold them on any day most convenient to him. Sheeb Ckunder
Bhuttacharjee v. Saadul Ally Khan, 4 W. R., 12 (1865).
CHAPTER XII.
Disputbs as to Immoveable Property.

149. ll) Whenever a District Magistrate, Subdivisional i'JJ^'i"^^
Magistrate or Magistrate of the first-class, is satisfied from a police- concerning land,
report or other information th.it a dispute likely to cause a breach cauw Vreicfi of
of the peace exists conc erning any lund or water or the bounda- 'Hn,e
ries thereof, within the local limits of his jurisdiction, he shall
make an order in writing, stating the grounds of his being so satis
fied, and requiring the parties concerned in such dispute to at
tend his Court in person or by pleader, within a time to bo fixed
by such Magistrate, and to put in written statements of their res
pective claims as respects the fact of aciual possession of the sub
ject of dispute.
(2) For the purposes of this section the expression " land or
water' includes buildings, markets, fisheries, crops or other pro
duce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided

by this Code for the service of a summons upon such person or
persons as t!ie Magistrate may direct, and at least one copy shall
be published by being affixed to some conspicuous place at or near
the subject of dispute.
Ihe Magistrate shall then, without reference to the merits of Inquio; «» to
the claims of any of such parties to a right to possess the subject i*0*"*''""1-
of dispute, peruse the statements so put in, hear the p irties, re
ceive the evidence produced by them respectively, consider the
effect of such e idence take such further evidence (if any) as he
thinks necessary, and if possible, decide whether any and which
of the parties was at the date of the order before mentioned in such
possession of the said subject :
Provided that, if it appears to the Magistrate that any party

has within two months next before the date of such order beeu
forcibly and wrongfully dispossessed, he may treat the party so
dispossessed as if he had been in possession at such date :
Provided also, that, if the Magistrate considers the case one
of emergency, he may at any time attach the subject of dispute,
pending his decision under this section.
144 Prevention of Ofences. [Ch*p XII.
(5) Nothing in this section shall preclude any party so re

quired to attend, or any other person interested, from showing
that no such dispute as aforesaid exists or has existed ; and in
such case the Magistrate shall cancel his said order, and all further
proceedings thereon shall be stayed, but subject to such cancellation,
the order of the Magistrate under sub-section {1 ) shall be final.
Party in posses- (6) If the Magistrate decides that one of the parties was in
Ms'icwio^ntii such possession of the said subject, he shall issue an order declaring
legally evicted. gucn party to be entitled to possession thereof until evicted there
from in due course of law, and forbidding all disturbance of such
possession until such eviction.
(7) Proceedings under this section shall not abate by rea
son only of the death of any of the parties thereto.
For form of Magistrate a order declaring party entitled
to retain possession of land, Sj-c., in dispute, see schedule V, No. 22.
[Instruments [34 Proviso 2nd (Act I of 1879). 2nd, nothing herein contain-
admissibie m e(j 8jjajj prevent the admission of any instrument in evidence in any pro-
certam ennn- jr , . _ ~ - * J r
nal proceed- ceeding in a Criminal Court other than a proceeding under Chapter
lug,.] XII or Chapter XXXVI of the Code of Criminal Procedure.]
Authority of In a case « here a District Magistrate made an order statingthat in hisopi-
District Maids- nion it was the duty of the Subdi visional Magistrate to institute proceedings
vUionll Mails- "ntler section 145 of the Criminal Procedure Code, 1882 : Held, that the District
trate. Magistrate had no authority in law to direct the Subdivisional Magistrate to
institute such proceedings. Kailash Chandra Pal v. Kunja Behari Poildar, I.
L. R., 24 Cal., 391 (1897).
Initial proceed- Before initiating proceedings under section 145 of the Criminal Procedure
lugs Parties Code. 1882, it is the duty of the Magistrate not only to be satisfied that a dis-
concerned-Ad- pUte likely to cause a breach of the peace exists, but algo to ascertain, as far as
durfngrtie possible, who are concerned in the dispute. The Magistrate has no power to
course of the add parties during the course of the proceedings unless in the initial proeeed-
prooeedinga. jngg }le j8 Batisfied that they are concerned in the dispute. If in the course of
the proceedings it appears to the Magistrate that it is absolutely necessary that
other parties should be required to attend, the only course open to him is to
initiate u new proceeding. I'rotap Narain Singh v. Rajendra Narain Singh,
I. L. B., 24 Cal., (F. 15.) 55 (189G).
Possession ac The " possession " referred to in the second paragraph of section 145 of
quired by force the Criminal Procedure Code, 1882, means actual possession at the time the
■Miton" P°S" proceedings were instituted, and not at the date of the passing of the Magis
trate's order. Under the said section, the point for the Magistrate's inquiry is
not whether any of the claimants has taken possession of the subject of dis
pute by force, but whether the struggle for it has ceased, leaving it to the
hands of one of them If the struggle has ceased, the party in whose hands
it remains is in actual possession, which the Magistrate is bound to recognize,
according to the section and the authorities. If the struggle is still proceed
ing, or if neither party can show its complete control over the subject at
the time when the proceedings are taken, neither party is to be regarded as
in possession, and the Magistrate is to take action under section 146 of the
Code. Possession, therefore, though obtained by wrongful means but com
plete at the time of enquiry, must be treated as actual possession within the
meaning of section 145 of the Code. Queen-Empress v. Gauhar Khan, Pani.
Roc. 1897, 10.
s. 145] Prevention of Offences. M5
A dispute as to the right to realize rent in respect, not of the whole six-Dispute as to
teen annas, but only of an undividel share of any tract of land, is not a dis- j^LgjuJJ^""
pute concerning tangible immoveable property within the meaning of section jgjnt undivided
145 of the Criminal Procedure Code, 1882. Surb Narain Singh v. Birj Mohun property - Order
Water, I. L.B, 23 Cal., 80 (1895). Cour^Tto"^-
session.
A proceeding under Chapter XII of the Criminal Procedure Code, 1882 Twer 1*
is an "enquiry" within the meaning of section 4 of the Code. The general divisional Ma-
power conferred by sections 192 and 528 of the Code upon a District ur Kistrato to
Subdivisionul Magistrate to transfer or withdraw any case for enquiry or ,^draW ês.
trial by any Magistrate subordinate to him is not taken away or cut down by
anything in section 145. The words of section 192 are wide enough to in
clude cases under Chapter XII. Satish Chandra Panday v. Rajendra Narain
Bagchi, I. L. B., 22 Cal., 898 (1895).
Where a decision has been given in a case under section 145 of the Cri" £^™CMa«;is-
niinul Procedure Code, 1882, and an order for costs has been made at the same trate other than
time and by the same Magistrate, there is no objection to the amount of such ™jn£Mthet™0"!
costs being afterwards assessed by a different Magistrate if an application fur cisionand mak-
that purpose is made to him within a reasonable time. Giridhar Chatterjee v j"8 the order
Ebadullah Naskar, I. L. B., 22 Cal., 384 (1895). . ,or co,t'"'
In setting aside an order passed by a Magistrate under section 14^ of the Possession, in-
Codc of Criminal Procedure, 1882, the High Court has power itself to pass ^jjj »"whSch
such order as should have been made by the Magistrate in the case. It is irn- Mni?istrat« is to
possible to lay down any hard-and-fast rule which may be applicable to all dctormino who
cases as to the exact point of time to which an enquiry under section 145 must "lion—"o r*d or*
be directed, and at the time at which possession must be found in one party or passed undersec-
the other must be governed by the facts of each particular case. To hold that "^j1™ 0tn"ke°n
the Magistrate is precluded from enquiring into anything before the date under section
when he actually commenced his own proceedings might in some cases lead 146 °f the Code,
to a person who has been acting in an 'unwarrantable manner misusing the
process of the law to enable him tp carry out a high-handed and improper
scheme, which could never have been the intention of the Legislature. In a
proceeding under section 145 regarding a dispute between two parties concern
ing certain collieries, it appeared that the first party were certainly in posses
sion of the buildings which contained the office where the business of the
collieries was transacted, and where all the cash books and papers of the busi
ness where kept, and the second party had during a period of fourteen days
prior to the commencement of the proceedings succeeded in obtaining posses
sion of pits, wharves, tramways, etc., of the colliery by what the Court con
sidered to be a high-handed and improper scheme and acting in an unwarrant
able manner. The Magistrate, considering himself bound to find who was in
actual possession at the date of the commencement of the proceedings by him
self, passed an order in favor of the second party. Held, that suoh order was
bad, and that as the second party was undoubtedly not in possession of the
whole property in dispute, and the effect of it was to place them in posses
sion of the portion that was in the possession of the first party, the proper
order to make under such circumstances was under section 146 attaching the
property. The Katrat-Jherriah Coal Company v. Sib KrUkta Daw <£• Com
pany, I. L. R., 22 Cal., 297 (1894).
Orders passed under Criminal Procedure Code, 1882, section 145, are bind- Parties bound
ing only on the actual parties to the cases in which they are made. Queen- b'oraer-
Empress v. Kuppayyar, I. L B., 18 Mad., 51 (1894).
A Magistrate in making an order, under Criminal Procedure Code, 1882, Actual posses-
sections 145 and 146, must inquire into the question which party was in actual oJTweediVi'g.'0"
possession at the time of the institution of the proceedings and not at the time
10
146 Prevention of Offences. [Chap. XII.
when the order is made. In making this enquiry the Magistrate may presume
that when a vendor sells part of a property he retains all that he does not
sell. Agra Bant, Limited, v. Leithman, I. L K., 18 Mad., 41 (1894).
Order of Crimi- Where proceedings under section 145 of the Criminal Procedure Code,
•ml Court as to igg2, were instituted by a Magistrate regarding a dispute as to the right to dig
* 8 u>°mo for coal in a certain mouza which was claimed by a Company to the exclusion
"r " " '*• ■ of those in possession of the surface rights of a portion of the mouza, and the
ccedings-
to notice. Magistrate made the Manager of the Company only a party to the proceedings
and not the Company itself, and an order was made under the section in
favor of the manager : Held, that the order was l>ad aud must be set aside
us the parties interested were not properly before the Court. The Manager
had no interest, except as such, or possession except as representing the Com
pany, and such possession is not the kind of possession contemplated by the
section. Rehary Lall Trigunait v Darby, 1. L. K., 21 Cal., 915 (1894) tee
also foot-note at p. 916.
"Parties con- In a proceeding under section 145 of the Criminal Procedure Code, 1882,
corned in dis- recorded on 27th April, 1893, A and B were respectively made first and
of"' one" oT ori- second parties, and were ordered to put in statements of their claims to the
*inal parties- land in dispute, which they accordingly did. B died on 24th May, 1893. In
2lJrt5r^r«bou' nis 8tateme,lts nleJ 0,1 tIie 31st May> A disclaimed any interest in the land,
frei.li proceeding but stated that his mother, D K (who had been a party concerned in the
-pPouetsioii at dispute which led to the original proceeding), was the owner and in possession
tion°o°f proceed- of it. On 1st June B S applied to be substituted as a party in place of his
in* oral time of father B. D K and B 8 were made parties without any fresh proceeding
final order. under section 145 of the Code. The case was heard on 27th Jure and 7th
July, and on 17th July the Magistrate found as regards the possession in favor
of D K. Held by PCTHERAM, C. J., and TftEVBLYAN. J., (RaMPIM, J., dissent
ing), that since the possession to be enquire 1 into was the possession at the time
of the institution of the proceedings, the words ''parties concerned in the
dispute" meant parties concerned at the time : there was no power in such a
proceeding to introduce parties who were not concerned in the original dispute.
No order could therefore be made against B S, and the proceedings were
bail as against him. Per KAMPINI, J.—The preliminary proceeding under
section 145 of the Code may, and in many cases must, partake of the character
of a general citation to all the parties concerned in the dispute to appear, and
it is not necessary for the Magistrate to confine his final order as to posses
sion to the parties whom he may have named in the preliminary proceeding.
The Magistrate had power to substitute the name of B S for that of his
father without commencing the proceedings de norn. The alteration in section
145 of Act X of 1882, of the language of section 530 of Act X of 1872, im
plies that the Magistrate is to decide on the possession, not at the time of the
initiation of the proceedings, but at the time of recording the evidence. If
there was any error in the proceedings, it was one cured by section 537 of the
Code. Berhu Sheikh v. Deb Kumari Dasi, I. L. H., 21 Cal., 404 (1893).
"funics con- The words " parties concerned " in section 145 of the Criminal Procedure
rerncd "—Wit- Code, 1882, do not necessarily mean only the persons who are disputing, but
nessos. include also persons who ate interested in, or claiming a right to, the property
in dispute. Though in a proceeding under section 145, the evidence is to be
recorded as in a summons case, it is the duty of the Magistrate to issue pro
cesses for the attendance of such witnesses as the parlies may desire to call,
unless he can show good reasons for not doing so. Ram Chandra Das v.
Monohur Roy, I. L. K., 21 Cal. 29 (1893).
Practice -Affl- A plaintiff in his affidavit of documents objected to allowing inspection
m"its-°SOTl<inU °^ SUC'1 Port'ons of certain account books us lis stated did not contain entries
up ' immaterial relating to the matters in question in the suit and claimed the right to seal
parts-Suffieien- up such portions. Upon that affidavit being filed, the defendant took out a
cy of affidavits. smumons to consider the sufficiency thereof It was objected that this was
S. 145.] Prevention of Offences. M7
not the proper mode of procedure, and that the defendant should take steps
when inspection was refused. Held, that though technically the better way
of raising the question would have been to takeout a summons for production,
the course taken by the defendant might, if preferred, be adopted, and that lie
was entitled to an order that the plaintiff should make a better and further
affidavit showing what parts of the documents he claimed to seal up, and the
grounds upon which the claim was based. Jadub Lull Shaw v. Kanai Lull
Shaio, I. L. R., 20 Cal., 587 (1893).
To justify the initiation of proceedings under section 145, Criminal Pro- Breach of the
cedure Code , 1882, it is not sufficient that in the course of a trial, it should Jf^^ndsfor
appear from the statement of a witness examined that a breach of the peace Magistrate tak-
is likely to ensue in consequence of a dispute regarding land. Before tak- I,"fdcrê<rtion
ing action, the Magistrate is bound to be satisfied from a police report or other 145-Noticn to
information on this point, and he is also bound to make an order in writing parti es—Ses-
stating the grounds of his being so satisfied, and this must be served on empowered "to
tho parties to the dispute, for it is the intention of the law, not only that order proceed-
Magistrates should have sufficient grounds for proceeding under section ""^LpÎ
145, but that they should iuform the parties concerned of tho grounds on ties claiming to
which they are proceeding. A Sessions Judge is not competent to order a ofjj'J,j°8î,a'°I[
Magistrate to take action under section 145. He should rather draw Btten--o(,it"pUtc.riiihtB
tion to the nature of the dispute in the trial before him, so that the Magistrate of. to appear in
may exercise his own discretion as to the necessity of proceedings. Proceed- proceedings,
ings so initiated, when there is nothing in the police report or elsewhere to
justify them, would be void, and section 537 of the Code would have no
application Parties who, though not actually involved in the dispute, claim
to be in possession of lands which are the subjects of proceedings under
section 145, should not be shut out from giving evidence in support of their
claims. To do so would undoubtedly occasion very serious prejudice and
interference with any possession which they might be able to establish Ihe
Queen-Empress v. Gobind Chandra Das, I L. B., 20 Cal., 520 (1893).
Before instituting proceeding under section 145 of the Criminal Proce- Breach of the
dure Code, 1882, a Magistrate is bound to satisfy himself, on grounds which peace - Police
are reasonable, that a breach of the peace is imminent iti regard to proper- of^Miifristmto
ties of the description specified in that section, and that a dispute likely acting under
to cause a breach of the peace exists concerning them ; and the grounds lôrd 'ôf
stated by him must be such as to satisfy a Court of Revision before which; rounds—Notico
such case may be brought by any of the parties concerned. Where a Ma- to parties,
gistrate, in consequence of the institution of various cases relating to breaches
of the peace between the partizans of two rival zemindars, had directed the
police to enquire and report whether there were sufficient grounds for pro
ceeding under section 145 of the Code, and, having received a report which
both suggested the necessity for such and set forth substantial reasons in
support of the suggestion, made such report the foundation for the proceeding
which he instituted, it was contended, among other things, that the Magistrate
had not complied with the provisions of the Code in omitting to state the
grounds of his being so satisfied of the imminence of a breach of the peace
H'i'l, that inasmuch as the police report contained abundant evidence of the
likelihood of a breach of the peace, it was sufficient for the purposes of notice
to the parties, for the Magistrate to cite it as the ground of his proceeding on
which he was satisfied that a dispute within the terms of section 145 existed,
and that it would be open t > the parties during the proceedings, if they dispu
ted the necessity for them, to show before the Magistrate that no such dispute
existed, or, if so advised, to move the Court of Revision to set aside the pro
ceedings, on the ground that the Magistrate had proceeded on grounds which
were not reasonable or which could not be held to be sufficient to satisfy him
that such a dispute existed. Dhanpul Sinr/h v. Chillerput Sing, I. L li., 20 Cal.,
513 (1893).
148 Prevention of Ofences. [Chap XII.
moveable" pn> Standing crops are " tangible' immoveable property " within the meaning
peity "—Stand- of section 145 of the Code of Criminal Procedure, 1882. Section 146 of the Code
Illchment^CivVl t'oe9.not S"ve jurisdiction to pass an order of attachment in a dispute between
and Revenue Partie* whose rigltts regarding such dispute would have to be determined
Courts—J uri»- by a Revenue Court. Gatwa Prasad v. Narain, I. L. B_ 15 All., 394
diction. (1893).
Order tor into- The possession which a Magistrate acting under section 145 of the Code
oV" immovable °* Criminal Procedure, 1882, has to find and support, is possession at the
proiKTty—Point time of the Magistrate's proceedings. Hence where a Magistrate decided a
sion'aTwWchfls (lues''on °^ possession under section 14 > upon evidence taken six months
to lie looked at previously,—Held, that such order was irregular and unsustainable. In re
in determining Jai Lai, I. L. R.r 13 All- 362 (1891).
which party la
entitled to ar.
order under sec- Under section 145 of the Code of Criminal Procedure, 1882, a Magistrate
lon _1_ is retruired to decide which of the parties between whom a dispute exists is in
Time at which possession of the subject of the dispute at the time when tl>e Magistrate decides
dotei mhie* "who the question of possession, and not at any time previous thereto. In re Hucha
sscs- Pa v. Shiva Ganga 'Fa, I. L. R.r 15 Bom., 152 (1890).
Dispute as t» A dispute as to the right to collect rents is a dispute concerning tangible

rin'ts-Tiinsibie ''"moveable property within the meaning of section 145 of the Criminal
immoveable Procedure Code, 1882, and the operation of that section cannot be limited by
property. any m\e which would depend upon the area of the property in dispute.
Where, in such a dispute which related to two pergnnnahs comprising more
than three hundred distinct villages, it was admitted by the petitioner that the
opposite party had been in possession by receipt of rent from the tenants up
to a period some three months anterior to the institution of the proceeding,
but she alleged that she had succeeded in inducing the tenants to attorn to
her by payment of rent to the officers appointed by her since such period ; and
where the Deputy Commissioner, after recording a certain amount of evidence,
refused to examine any more witnesses, on the ground that the enquiry would
extend to an inordinate length and be extremely expensive, and passed an
order under the section,—Held, tint even though it might be established that
the Deputy Commissioner's action in excluding evidence was illegal, it did not
follow, having regard to the circumstances of the case, that the High Court
would be justified in exercising its revisional powers Held, further, that a
payment of rent for a short time to the petitioner, even if proved, would not
amount to dispossession of the opposite party. Abhayestari Debi v. Shidhes-
sari Debi, I. L. R., 16 Cal , 51b (1889).
Inquiry into In an inquiry under section 145 of the Code of Criminal Procedure, 1882,
TTme'at^wiricb wnere the property in dispute was forest land, the right to possession of which
Magistrate has was exercised by cutting and removing timber from time to time, the Magis-
to determine trate found that the men of the first party had been driven away by those of
session"—Unîs- the second, and had been unable to enter the forest and remove the timber
turned posses- alleged to have been cut by tliem ; thit this happened before the time of the
I10l'befored'dki '"'t'"' proceedings and continued to the date of tlie hearing ; and that the men
pule.'0 °re 1S" of the second party had been able to bring out of the forest the timber which
had been cut. Upon these findings he came to the conclusion that the pos
session of the second party had been established, and made an order under the
section in their favour. Held, that having regard to the nature of the proper
ty in dispute, these facts could not constitute legal possession of tlie second
party at the time the proceedings were instituted. Held, further, that in like
cases, having regard to the nature of the property in dispute, and the mode
in which possession may be exercised over it, in order to find which party
was in possession when the proceedings were instituted, it is necessary to
enquire which party was in undisturbed possession of the land in dispute by
felling timber and removing the same without objection on the occasion im
mediately preceding the one in which the dispute arose ; and whichever
party be found to have been in possession on that occasion, should be presum
ed to have possession at the time when the proceedings were commenced.
Jagal Kishort Acharjya Choicdhuri v. Khajah Askanulhiit Khan Bahadur, I. L.
R., 16 Cal., 281 (1889).
A dispute as to the right to collect rents is a dispute concerning tangible ri'HtUtto*coJleVt
immoveable property within tlte meaning of section 145 of the Code of Crimi- rent—Tangible
nal Procedure, 1882. Where a dispute arose as to the right to collect the rents immoveable
of certain land, the ownership of which was claimed by both A and B, and the Pr°PertJ -
tenants who had been paying rent to A refused to pay rent to A and attorned
to B,—Held, that the conduct of the tenants in attorning to B was not an
assertion of possession adverse to A such as to put an end to the relation of
landlord and tenant between them and A and to A's right to collect the rents.
Such attornment therefore did not deprive A of his right to have recourse to
section 145 in case of a likelihood of a breach of the peace, so as to have his
possession of the right to collect the rents maintained, pending proceedings in
a civil suit. Sarbanai la Basu Alozumiar v. Pran Sankar Roy Choicdhuri, I.
L. II., 15 Cal., 527 (1888).
A Magistrate, proceeding under section 145 of the Code of Criminal Pro- Joint hearing of
ce lure, 1882, is in a case in which one party (thirty -nine in number) claimed J£jer»iMîainv
to be tenants of 708 bighas of land belonging to one Tafascul Hossein, and the ants - Posses-
ineinbers of the other party (seventeen in number) claimed to hold the game "j,0",,"^^.^
Inn ! in several parcels as their mauratijete, tried the question of possession as be- plots,
tween the two parties in one case, notwithstanding the protest of the maurasi
claimants to this mode of procedure, and decided that possession was with the
party of thirty-nine, directing that they as a body should remain in possession
until ousted by the order of a Civil Court. Held, that the course pursued by
the Magistrate at the hearing was prejudicial to the case of the maurasi claim
ants ; and that the form of his order was open to the objection that it would ren
der it necessary for the party out of possession to make all the persons de
clared to be in possession defendants in any civil suits brought to recover posses
sion of the land. Kuluhul Singh v. Uma Singh, I. L. R., 15 Cal., 31 (1887).
When a Magistrate has passed an order under section 145 of the Code of Proceeding*
Criminal Procedure, 1882, whereas the proper order in tlie case should have li^Sorder*''™
been one under section 146, the High Court in revision will make the order ed undeV^scc-
which the lower court ought to have made. Reid v. Richardson, L L. R», *«">
14 Cal., 361 (1887).
A Magistrate, trying a case under section 145 of the Code of Criminal Possession-
Procedure, 1882, in determining the question of possession, took into consi- Si'l^fS'o,'''
deration the question of title. Held, that he had a right to discuss the ques
tion of title, if in his opinion it was material upon the question of possession ;
anil that the mere fact that he had considered and discussed the question of
title would not invalidate his decision on the point of possession, provided that
there was evidence before him as to who was in possession. Semble.— In the
absence of any other evidence of possession, a Magistrate would be justified
in finding possession to be with a person to whom symbolical possession has
been shown to have been given in execution of a decree, although possibly
slight evidence would be sufficient to rebut such evidence of possession. Raja
Babu v. Afuddun Mohun Lall, I. L. R., 14 Cal., 169 (1886).
A dispute concerning a julkur right is not a dispute concerning " tangi- l}.'^l"}'1iei'fllt~
ble immoveable property " within the meaning of section 145 of the Code of moveable 1)r'"-"
Criminal Procedure, 1882, and cannot be inquire 1 into by a Magistrate under perty - Disi.ute
tire provisions of that section. Amind Moyi Dabia v. Shurnomoyi, [. L. ]{., 13 Jul-
Cal., 179 (1886).
Prevention of Offences. [Chap. XII-
Disobedienco In May, 1883, the District Magistrate of Tipperali lielil nn inquiry as to the
t?c°iCT«int-ifn- Possessi°n of certain lands claimed by A and B, and having found on the evi-
quiry as to po»- denee taken by him that A was in possession, he passed an order on the 21st
session r Parties of May, 1883, declaring that A was entitled to hold possession of the disputed
o nq ry. land until evicted in due course of law, and forbidding B and all others to
disturb A's possession until such disturbance should be effected in due course
of law. Previously to November, 1885, B sold an eight-anna share of his in
terest in the disputed land to C, who at the time of his purchase had notice of
the order of the 21st of May, 1883. In November, 1885, B and others went
to the disputed lands, and attempted to turn A out of possession by force, and
to compel the tenants of the lands to pay rent and give kabuliats to B and C.
At the time that B and his companions went to the disputed land, the latter
were aware of the order of the 21st of May, 1883, though none of them was a
party to the inquiry then made by the District Magistrate. In December,
1885, they were all tried and found guilty of disobedience to an order duly
promulgated by a public servant. Held, that the conviction was right. Sim
ile, that a reference by a Magistrate to a police report which clearly sets out
the probability of a breach of the peace is a sufficient statcn ent of the
reasons for the Magislrate's being satisfied of the existence of a dispute
likely to cause a breach of the peace within the meaning of section 145 of the
Code of Criminal Procedure, 1882. Goluck Chandra J'al v. Kalicharan
De,I. L. R, 13Cal., 175 (1886;.
'Tangible ira- A dispute concerning the right to fish in a julkur is not a dispute con-
^rty"b'julliur cern'ng a«y tangible " immoveable property " within the meaning of section
dispute reganl- 145 of tlx; Code of Criminal Procedure, 1882. Enquiries under section 145
should be directed to the question as to which party is in possession of the
subject of dispute before any proceedings in tlie Court have been taken in the
matter. Krishna Dhune JJnlt v. Troilokia Nalh Biswas, I. L. R., 12 Cal.,
539 (1886).
Inquiry ns to Under section 145 of the Code of Criminal Procedure, 1882, a Magistrate
•^Hua'r' iosscs 'llls ^° '<>0'< '° ''le " ac'ua' prosession " that, the prosession, however obtained,
sion " P0"868 of the party in possession at the time of the inquiry. Chunder Koomar Poddar
v. Chunder Kanta Ghose, I. L. K , 12 Cal., 521 (1885;.
Procedure- Proceedings under section 145 of the Criminal Procedure Code, 1882,
witnesses— of should on all points of procedure be regarded as summons cases, and although
Prowss to en- it is discretionary with a Magistrate to issue a summons on a witness in such
dance fttte"" 11 case, yet, when any one of the parties applies at a proper time for process to
secure the attendance of his witnesses, the Magistrate should not arbitrarily
refuse his assistance; and where such refusal is made, it is incumbent on the
Magistrate to record his reasons for such refusal. Hurendro Narain Singh
Chowdhry v. Bhobani Prea Baruani, I. L. P.., 11 Cal. , 762 (1885).
Dispute ns to A dispute as to the right to collect rents is a dispute concerning tangible
the right to immoveable property within the meaning of section 145 of the Code of Crimi-
Tan^blT"Shn- c*l Procedure, 1882. Pramatha Bhusana Deb Roy v. Doorga Churn Bhatta-
inoveable pro- charji, I. L. R.. 1 1 Cal., 413 (1885).
pcrty.
Possession in- Under section 145 of the Criminal Procedure Code, 1882, the Magistrate
quiry as to— has to find which of the parties is in possession of the subject-matter of the dis-
Mln?stH'tWîCto Pu*e tt* *',e tmle wnen ne 's '"quiring into the matter, which in the contempla-
Uetermine0 who t'on of the law is identical with the time of the institution of the p oceedings,
was in posses- and not at any time previous thereto, and he has no concern as to how the party
possession"11' then in actual possession obtained possession, but has only to pass an order
retaining him in his possession. Ambler v. / ushong, I. L. li., 11 Cal.,
365(1885).
In a proceeJing under section 145 oi the Code of Criminal Procedure. Breach of the
1882, it appeared that the Magistrate, without passing any order under that sec- }o?n^diiêSSb.T
tion stating the grounds on which he was satisfied of the existence of a dispute Magistrate that
likely to cause a breach of the peace, merely ordered on the complainant's pe- Jj^'f?"^ "i'm
tition that the accused should be summoned to answer the complainant. On SHCh* breach—
the accused appearing and denying that there was any risk of a breach of the Omission of such
peace, the Magistrate without determining whether any breach of the peace Setocif * *
was likely or enquiring whether the accused had any evidence, proceeded to
take the complainant's evidence, and finding that the accused had wrongfully
taken prosession, ordered the complainant's possession to be restored. Held,
that as the Magistrate had not found the facts which were necessary to consti
tute the foundation of his jurisdiction to dispose of the case under the Code his
order must be set aside. Budhu v. The Empress, Panj. Rec. 1885, 17 .
In a suit to recover a building site an injunction was issued by the Court injunction— .
restraining the defendant from building on the land pending the decision of ^''^.J0 the
the suit On appeal the injunction was dissolved on the ground that the I,roc
defendant was in possession. Subsequent to this order the District Magis
trate, on tlie complaint of the plaintiff against the defendant, passed an order
under section 145 of the Code of Criminal Procedure, 1882, declaring that A
and V were in possession, and forbidding all disturbance of their possession
until the decision of a Civil Court: Held, that K and Knot being parties to
the proceedings, the order was illegal. Held, also, that if a breach of the
peace appeared likely to occur, the proper course was for the Magistrate to
take security from the party from whom a I reach of the peace was appre
hended, but that it was not illegal for the Magistrate to proceed under sec
tion 145 or section 147 of the Code. Sttbba tfayalc v. Trincal, I. L. H., 7
Mad., 4C0 (1884).
It is the duty of a Magistrate, before taking proceedings under section Dispute likely
145 of the Code of Criminal Procedure, 1882, to satisfy himself whether to cause breaefc
there is any dispute likely to cause a breach of the peace, and that the sug- uuty'ot ,Magls-
gestcd apprehension of a breach of the peace is not merely colourable, and trate.
made to induce him to deal with matters properly cognizable by the Civil
Court. Obkoy Chandra Mookerjee v. Mohamed Sabir, I. L. K., 10 Cal., 78
(1883).
A dispute existing between one of the co-sharers of an undivided estate Btapute as to
and the leasee of another co-sharer, as to the right of the latter to collect IJI^Jty-col-
rent, such right being denied on the ground that the lessor was not in posses- lection of rent
sion of herCode,
Procedure share,1882,
an enquiry
and thewas made
lessor wasunder Chapter
declared to beXII of the Criminal
in possession of her [[jj01",^
pr ""tv**"
share. Held, thai the provisions of that chapter were not applicable to tire
dispute in question lleni Narain v. Achraj Nuth, I. L. R., 5 All., 607
(1883).
In order to justify a Magistrate in interfering under section 530 of the Omission of Mu-
Criminal Procedure Code, 1872, it is necessary that he should be satisfied that cw™.w\hn\nnry
there exists a dispute concerning land which is likely to induce a breach of the proceeding.
peace, i. «., there must be a reasonable apprehension that a disturbance of the
peace is likely to occur, rendering it necessary for him to take immediate
steps to prevent it, and not merely that it is probable a breach of the peace
may occur if proceedings under section 530 be not taken. Qiacre.— Whether
it is necessary that a preliminary proceeding should first be recorded to give
the Magistrate jurisdiction ? Damodur Biddyadhur Mohapatro v. Syama-
nund Dey, I. L. R., 7 Cal., 385 (1881).
In proceedings under section 530 of the Criminal Procedure Code, 1872, B e c o r A of
the Magistrate recorded the following words, " whereas from the police report rc°por"ri>>°'or-
a breach of the peace is probable," and fouud that certain persons were in pos- uonlion ' of—
session,—Held that, although the record of grounds was unsatisfactory, as the î^-on Bri-
initial proceeding did not contain within itself all which the law requires to I'C deuje'uirtitloT
152 prevention of Ofences. [Chap. XII.
recorded, viz., in the first place, that the Magistrate is satisfied that « dispnfe
likely to induce a breach of the peace exists, and in the second place, the ground
upon which he is so satisfied, yet that as the police report from which the
grounds for apprehending a breach of the peace appeared was incorporated by
reference, the final order was not defective. No sufficient evidence of posses
sion was produced before the Magistrate, but evidence as to the title of the
person in whose favor the Magistrate found was given, and the Magistrate
based his decision upon the lutter evidence, and determined the case with re-
fernce to the merits of the claims of the parties to the right of possession Held,
that although the Magistrate would have been justified in looking to the evi
dence of title in corroboration of the evidence of possession, he was wrong in
basing his decision on the evidence of title, and his order was set aside. Kali
Kritto Thakur v Golam Ali Chowdhry, I. L. R., 7 Cal., 46 (1881)
Dwpu likely to On the 20th of March, 1879, A applied to have certain lnnds, which lie had
th" peac™li-° lately purchased, registered in his name. The order of the Deputy Collector,
ciaionon title by declaring that A had proved possession, and was entitled to registration, was not
Mre'reiSortT iin- passed until the 24th December, 1879 Prior to A'l purchase, B and C had, on
corporation of- the (ith March, 1879, obtained registration of the same property. The proceed-
By reference, ings were sent to the Commissioner, who, on the 29th September, i880, de
clared A to be entitled to the land ; and in October the registration in the names
of B and C was cancelled, and A's name was finally registered. In July, 1880,
proceedings under section 530 of the Criminal Procedure Code, 1872, were
commenced upon the petition of certain ryots, who alleged that other ryots, at
the registration of A, were going to do acts which would lead to a breach of
the peace. The Deputy Magistrate, the same person who as Deputy Collector
had decided the land-registration case in favor of A, proceeded under section
530 to consider the questions as to who was in possession, and found that B
and C were in possession. Held, that the Deputy Magistrate could not, in
these proceedings, set aside the order which he had in the registration case, as
that order could only be set aside in a regular suit. The proceedings recorded
by the Deputy Magistrate did not set forth in express language that he was
satisfied that a dispute likely to create a breach of the peace existed in respect
of the land in question, between A on the one side, and B and C on the other ;
nor did it set forth the grounds upon which he was so satisfied that such dis
pute existed. Held, that the proceeding was therefore defective. In the pro
ceedings, the Magistrate refered to a police report, which however did not show
that a breach of the peace was imminent. Held, that although this report
might be taken to be incorporated by reference, yet that it was not sufficient
to justify the order. In re Gobind Chander Aioilra v. Abdool Sayad, I. L. R.,
6 Cal., 835 (1881).
Mamlntdars A mamlatdar's finding as to the point of actual possession is not conclu-
{w^wssion-Ma- sive- A Magistrate's finding is so under section 530 of the Code of Criminal
Kwtnite's find- Procedure, 1872 Possession actually taken by a person having a right to it is
ing as to poj- not the less effective, as perfecting his title by reason of an irregularity in tak-
iTOss'ession0- 'ng Subsequent ouster will give rise to a new cause of action. Lillu Bin Ra
Dispossession— Ghushet v. Annaji Paraehram, I. L. R., 5 Bom., 387 (1881).
Cause of action—
Het judicata.
Possession Dig- A dispute having arisen as to the possession of 109 plots of land, to
pute as to a which a claim to possession was made by the ryots of village A on the one
oMttifdr.°'Pl0tS hand, and by the ryots cf village B on the other, the Magistrate institut
ed a proceeding under section 530 of the Code of Criminal Procedure, 1872,
in respect of all the 109 plots, but, having taken evidence, dealt in his order
with 12 only, directing that the ryots of village B should be kept in posses
sion. Held that, it appearing that all the 109 plots were covered by the same
state of circumstances, the Magistrate had exercised a sound discretion in
acting as he did. A aim Molluh v. Saloo Paranumirk, 10 Cal. L. R., 523
(1881).
Where action was taken tinder section 630 of the Code of Criminal Pro- Incorporation
cedure, 1872, the Magistrate recorded the following statement, " whereas from prolseedinjr'
the police report a breach of the peace is probable," as the ground of his pro- recorded by
ceeding under that section. Hell, that the proceeding thus recorded by the pg^'JJ!,,*!
Magistrate was not in itself a sufficient compliance with the requirements of Title how
the section, which requires that the proceeding shall state that the Magistrate '« evidence of
is satisfied that a dispute likely to induce a breach of the peace existed, and pos"e'w10"'
the ground upon which he is so satisfied, but that the police report referred to
might be incorporated to show that a dispute likely to induce a breach of the
peace existed, and that there were grounds upon which the Magistrate might
reasonably be satisfied. Where there has been substantial evidence of pos
session or a conflict of evidence on that question, the Magistrate is justified
in looking to the evidence of title in corroboration of the evidence of posses
sion. In re Kali Krishto Thakur v. Golam Alt Chowdhry, 8 Cal. L. R., 245
(1881).
In the absence of evidence that an order under section 530 of the Code Order to whom
of Criminal Procedure, 1872, was in fact directed to the accused, he cannot f,dn^!,*f„n~ lm.
legally be convicted under section 188 of the Penal Code for disobeying such deTsection 1*8,
order. In re Nobo Kithore Chuckerbultg, 7 Cal. L. R., 291 (1880). Penal Code.
Where a decree has been passed by a Civil Court determining the rights Possession mi-
of the parties to a suit to disputed land, it is a Magistrate's duty to uphold that cfvil Court—°
decree, and he cannot, as between such parties, proceed under section 530 of Uuty ot Miutii-
the Code of Criminal Procedure, 1872, to decide afresh upon the question of fJJ^JiJ,,^0,,*""
possession. Inre Bhola Nalh Ghose, 7 Cal. L. B , 516 (1880j. decree of Civil
Court- Juris-
A Criminal Court ought not to interfere in cases where a purchaser under traie?"°'MaR"
a decree is resisted in getting actual possession of the property which he has _ .
bought, the procedure to be adopted in such cases being that provided in Chap- êcutfonof'0
ter XIX of the Civil Procedure Code. Prayag Singh v. Fuzool Hotsein, 6 Cal. decree.
L. R., 206 (1880).
Where there is a dispute likely to lead to a breach of the peace concern- Parties,
ing land, and proceedings are recorded and had under section 530 of the Code
of Criminal Procedure, 1872, no order should be made against one who is act
ing as the servant of another person who claims to have possession of the
land, unless that other person is made a party to the proceedings. In re Jit-
bahan Bansrup Dhobi, 6 Cal. L. R , 193 (1880).
Section 530 of the Code of Criminal Procedure, 1872, contemplates dis- Constructive
putes between owners as well as occupiers. When a zemindar has let his p^S,^"-
lands in farm, he, his farmers, and the occupying ryots, are all, in their de- through ticca-
gree, concerned in any dispute as to possession which may arise, and they dar-
ought to be maintained in possession of the interests which they sever
ally enjoy Harak Narain Singh v. Luchmi Box Roy, 5 Cal. L. R.,
287 (1879).
A certain mouza having been sold in execution of a decree obtained Effect of symbo-
up3n a mortgage, the purchaser claimed a right under the sale to a hdt ap- u'ndCrê«ree "of
purtenant to the mouza, and was put by the nazir of the Civil Court into sym- Civil Court,
bolical possession of the hdt as well as of the mouza. The judgment-debtor
refused to give actual possession of the hdt, maintaining that it was d(but
ter property, of which he was the ehebait. A breach of the peace being
imminent in consequence of the rival claims, proceedings were taken under
section 530 of the Code of Criminal Procedure, 1872, and the Magistrate,
finding that the judgment-debtor was in actual possession of the hdt, made
an order maintaining him in such possession until ousted by a Civil Court.
Held (setting aside that order), that the Magistrate had no power, under section
'54 Prevention of Offences. [Chap. XII-
530 of the Code, to direct the judgment-debtor to be retained in posses

sion until ousted by a Civil Court, but was bound to see that the possession,
as given by the nazir, was maintained, leaving it to the debtor to substan
tiate his claim ax nhtbait in a Civil Court, In re Chutraput Singh, 5 Cal. L. It..
200 (1879).
Proceeding baa- '.Vhcre the proceeding recorde 1 by a Magistrate, under section 530
ed upon iusuffl- ()f the Code of Criminal Procedure, 1872, is based on materials which do
yurisdicUo™ * not disclose sufficient ground for considering that a breach of the peace is
imminent, an order calling upon the parties concerned in the dispute to
attend in Court and give in a written statement of their respective claims,
in respaet of the fact of actual possession of the subject of dispute, may be
set aside as niado without jurisdiction. Chunder ilaihub Gkose v. Juggut
Chunder Sen, 4 Cal. L. 1!., 483 (1879).
Utnlte^-Notico Tll.e Vowcr given to * Magistrate to make a binding declaration as to the
to pirtie* to at- possession of any property, is an exceptional one, and section 530 of the Cri-
In'te^vonor.0 ' ~ m'na' Proco lure, Code, 1872, limits the exercise of that power to cases in
w hich the Magistrate is satisfied that a dispute, likely to induce a breach of
the peace, exists, it is this likelihood, with the consequent necessity for im
mediate action, w hich alone warrants action by the Magistrate. The grounds
for his belief as to the existence of a likelihood of a breach of the peace
must be recorded. Although no particular mode of giving notice, calling up
on parties to attend under this section before the Magistrate, has been provid
ed, yet the language of the section indicates that the notice shall be a (dress
ed to known individuals, and not be in the form of a public proclamation or
citation.
There is no provision in the Criminal Procedure Code for allowing an
intervener to come in, in the middle of proceedings held by a Magistrate
under this section. In re Kununl Narain Bhooji, I. L. R., 4 Cal., 650 (1878).
Ouster without Ouster by one parson of an itber lawfully in possession of property, con-
vii'co'i'rf Poiicc- ^CH 110 rights on the former which can be recognised in proceedings taken
lul possession, under section 533 of the Code of Criminal Procedure, 1872 The Court should
refer back to a time previous to the quarrel when such possession was peace
fully enjoyed by one or other of the disputants. In re Mohesh Chunder Khan,
I. L. It., 4 Cal, 417 (1878).
Possession-But- The possession given by an amecn in a butwara procee ling is simply
rjS^PoMe?-" one °^ ownersM'P anr' not °f occupancy. Such possession cannot, therefore,
"ion given by in proceedings under section 530 of the Code of Criminal Procedure, 1872,
smeon, effect (,e held to oust tenants occupying lands previous to such delivery of possession.
of- Mackeniie v Shere Bah'toor Suhi, I. L. U., 4 Cal., 378 (1878).
Ejectment -Te- A notice to quit running only for ten days is not a sufficiently reasonable
year- -Season- notice on which a landlord can maintain a suit in ejectment against a tenant
able notice to from year to year. Proceedings in a Criminal Court under section 530 of the
quit" Code of Criminal Procedure, 1872, are not a sufficient demand of possession
for the purpose of maintaining un ejectment suit. Ram Rattan Mundul v.
Netro KMy Dassee, I. L. It., 4 Cal., 339 (1878).
Jurisdiction— A Bench of Magistrates has no power to deal with cases coming under
Bench otMagis- section 530 of the Criminal Procedure Code, 1872. A Bench may be empower-
trates. efj un(jer gection 50 of the Code " to try such cases or such class of cases only
and within such limits as the Government may direct." The definition of the
term " trial " shows that it refers to trials for offences, and these do not come
within the miscellaneous matters mentioned in section 530. Sttfffruildin v.
Ibrahim, I. L. R., 3 Cal., 754 (1878).
S. 145] Frevention of C{fences. 155
In a cnse of disputed possession between two rival zemindars, constructive Conitructiv*

possession t rough intermediate holders (ticcadart), to whom the ryots pay {"riiieXTe hoi'
rents, is not Bach possession as is contemplated by section 630 of the Code of ders.
Criminal Procedure 1872. The Empregg v. Thacoor Dyal Sing, I. L. R., 3
Cal., 320 (1878).
In a proceeding under section 530 of the Code of Criminal Procedure, 1872, Jju5S£,™i-in.
the Magistrate must decide the fact of possession on evidence taken by himself quiry- Local
and not according to the result of a local inquiry made under section 533, un- inquiry—He-
less the parties have consented to be bound thereby. PerPRiNSBP, J.—The local po •
inquiry referred to in section 533 should be restricted solely to some question
relating to the features of the property about which the dispute has arisen,
and should not be directed to any matter which can be proved before the
Magistrate by oral evidence. In re Baikunt Kumar, 3 Cal. L. R., 134
(1878).
In an enquiry under section 530 of the Code of Criminal Procedure, 1872, ^.'"pJK^f*"
the only thing to be determined is the fact of actual possession. In a dispute »i„n 0f agent -
between the wife of a lunatic and the manager of his estate, with regard to Wife's posses-
the possession of certain property, the Magistrate attached the property under 810n-
section 531 of Act X of 1872, 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. In re Juggodethary Chowdhrain, 3
Cal. L. R., 94 (187*).
On the death of one of the persons concerned in a matter under section Death ot one of
530 of the Code of Criminal Procedure, 1872, just before those proceedings tn« parties,
terminated in favor of that person and another, though it would be more re
gular for the Magistrate to postpone the proceedings and make his represent
ative a party in his place, the proceedings are not necessarily bad since the
death has prejudiced no one. Sreemutty Ranee v . Luchman Pershatt Uoyo, 2
Cal. L. R., 264 (1878).
When the contending parties are admittedly in joint possession of certain Order of Ciril
premises, a Magistrate, under section 530 of the Code of Criminal Procedure, Court- lllejtnl
1872. cannot determine whether one of them is at liberty to make use of the "m™ o^~Sh1gis-
land in such a manner as to cause annoyance to another and against his will, trate to summon
Such a matter is beyond his jurisdiction. Any order passed under section 530 {hedefcnee ,0r
ceases to have effect when the party aggrieved by it obtains an order from 6 e °"CC'
the Civil Court declaring his rights as against such order. It is not intended
by section :^5it of the Code that a Magistrate should enquire generally into the
nature of the defence, and then to consider whether he should absolutely
abstain from summoning the whole of the witnesses cited by the accused, but
that when the Magistrate considers that any particular witness is included
for the purpose of vexation or delay, lie should exercise his judgment and
enquire whether such witne3s is material. In re llajcoomar Singh, 2 Cal. L.
R., 62 (1878).
A Magistrate cannot, under section 530 of the Code of Criminal Procedure, Order of Matfs-
1872, order that a person be kept in pofsession until he has reaped the crop ^0*,^ssLomitcd
standing on the ground, and then that he shall give way to another. When
there have been long pending dispute* in the Courts he shall determine who
was in peaceable possession when they commenced. In re Bamrnri Lull Mil
ter v Raja Radha Perthad Singh. 1 Cal. L. R. 130 (1877).
Prevention of Ofences. [Chap XII.
Breach of the Where a police-officer reported that there was a probability of a breach
nonîrinbolte °^ '',e Peace arising in consequence of a dispute about the possession of some
possession—Er- land and the Magistrate endorsed an order on the police report, calling on
ror in law. j|ie t.ourt inspector to summon the parties, without having recorded a pro
ceeding, expressing his satisfaction with the grounds on which a breach of
the peace was apprehended ; and it was contended by the party, in whose
interest the order finally passed by the Magistrate was made, that the fact of
the passing of the order embraced the necessary conviction : Held, follow
ing the current of decisions on the point, that, in order to justify a Magis
trate in interfering with public rights under section 530 of the Code of
Criminal Procedure, 1872, it was necessary, not only that he should be satis
fied upon sufficient grounds that a breach is likely to occur, but that he should
acquire a jurisdiction to deal with it by first recording a proceeding express
ing his opinion on the subject ; and that the omission to record such a pro
ceeding is not a mere irregularity, but a substantial defect lying at the root
of the Magistrate's jurisdiction. Section 297 of Act X of 1872, which gives
the High Court power to correct any material error in any judicial proceeding
of a subordinate Court, refers to errors in law, and not to errors in findings
of facts. Sheikh Munglo v.Durga Narain Nag, 25 W. B., 74 (1876).
Contested pos- The Criminal Court has jurisdiction, under the Code of Criminal Pro-
S'-iiirisdic-" cediire, 1872, section 530, to determine questions of contested possession
tion of Crimi- between parties who arc not in immediate possession of the subject-mutter
nal Court. 0f ,ij8pUt0, but claim rent from tenants who actually occupy it. The act of a
process-peon delivering over possession of the disputed land to the purchaser,
as part of a tenure sold in execution, does not take away the power of a Magis
trate to enquire into the question of possession between the parties nnder sec
tion 530. Aobitt Chuntler Koondoo v. Jageiulronath Bhuttacharjee, 25 W. R.,18
(1876)
Deputed pos- Where each of two parties claimed the same share in certain property as
a whole estate, neither alleging that the other was joint with him in any way
and the Magistrate, without reference to the right of possession, went into
the question of who was in possession, and maintained the possession of the
party found in possession, the High Court hHd that the case fell under the
Codeof Criminal Procedure, 1872, section 30, and saw no necessity to interfere
with the decision. Byjnatk Salioo v. Rugoonalh Pershad, V6 W. K., 1C (1876).
Attachment- Where an Assistant Magistrate, acting under the Co 1c of Criminal Proce-
Possession. dure, 1872, section 531, found one of the prt prietors of an ijmalee talook in ac
tual possession of a 12-anna share, which was all that he claimed, and it was
in evidence that the rents had, till the commencement of the dispute, been col
lected indistinct and separate shares, he was held to have committed an error
in law in attaching the whole estate as involve i in the dispute. The words
"institution of proceedings" in section 531 mean the commencement of the ac
tion which results in the application to the Magistrate's Court ; and the posses
sion to be determined is possession at the time the dispute arose, i. «., at the
time the police reported that a breach of the peace was likely to take place.
Rakhal Dat Singh v. RajaSheo Pershad Sing, 24 W. K., 73 (1875).
Breach of the Where a dispute exists about land, which is likely to induce a breach of
peace" the peace without such breach being imminent, the Magistrate should proceed
under the Code of Criminal Procedure, 1872, section 530, and not under sec
tion 491. The Queen v. Mohesh Chunder Roy, 24 W. R., 67 (1875).
Object of see- The object of the Code of Criminal Procedure, 1872, section 530, is to
tion 530, Act X prevent a breach of the peace by retaining in possession the party already
of 1878. there, until such time as the Civil Court can pronounce on the two conflicting
claims. When a Civil Court decree is once passed, the right as between the
litigants is decided, and there is no more place for a summary order which
proceeds, not upon title , but on mere possession. Raneegunge Coal Associ
ation, Limited, v. Hem Lall Gnatwal, 24 W. B., 17 (1875).
S. 145.] Prevention of Offences. •57
Where an inquiry had already been set on foot under Chapter XXXVII Preliminaries
of the Cofle of Criminal Procedure, 1872 and the Magistrate at the same time " t»i?i*in« a
came to a decision under section 530 that a certain party was in possession. psrtv in pos-
and passe 1 an order maintaining him in possession: Hel I that, although no sesawn-
particular proceeding was recorded under section 5 *0, yet the preliminaries
therein prescribed had been substantially complied with. Duriao Singh v.
Uma Proshad, 24 W. R , 16 (1875).
In a case under section 530 of the Code of Criminal Procedure, 1872, the Procod are-
High Court setaside the proceedings of a Deputy Magistrate, who, on succeeding ^<5*„f,'",n0.n"0'n^?"
his predecessor who had gone into the case, instead of recalling the witnesses cer who tnkcs
de novo, and examining them himself, decided the question of possession on the evidence,
evidence which had been taken by his predecessor. Guru Churn Sen v. Kali
Nuth Dass Biswas. 23 W. R., 62 (1875).
The holding of uu inquiry, under Chapter XI of the Code of Criminal Disputed nos-
Proccdure, 1872, is a matter entirely within the discretion of the Magistrate of J^"^ kee^the
the district or of a division of a district, and the High Court has no authority peace- Discre-
to require him to proceed under that chapter. The taking of security for [j0^*111*'8'
keeping the peace is also a matter within the discretion of the Magistrate, pro
vided that he has materials upon which to proceed. In re Kali Proiunno
Roy, 23 W. R., 58 (1875).
The possession in regard to which the Magistrate's jurisdiction under Breach or the
section 530 of the Code of Criminal Procedure, 1872, should be exercised must ^^Liml'dis-
be of a real and tangible character. When a party claims under a document p^te'-Juriadic*
or agreement the right of doing certain things over a large extent of territory, tion.
the performance of acts under such alleged right in one portion of the ground
over which the right extends, although it may be good and sufficient for the
purpose of keeping alive that right so as to be an answer to the plea of limit
ation raised in a civil suit, is not of itself a sufficient possession on which the
Magistrate's order under section 530 may be based for the purpose of forbid
ding in a distant locality acts not necessarily in contlict with surh possession,
though at variance with the right. Bejoy Nath Ghatterjee v. The Bengal Coal
Company, Limited, 23 W. R., 45 (1875).
Where a Magistrate, instead of proceeding upon evidence judicially taken Breach of the
before him sufficient to show that the accuse 1 were contemplating acts which ^™ Kitra-ju-
would amount to a breach of the pe ice, acte 1 upon his extra-judicial knowledge dicial know-
the High Court set aside his order under section 491 of the Code of Criminal ]edge-
Procedure, 1872, requiring the accused to furnish recognizance. Rajah Run
Baha loor Singh v. Rani Tilessuree Koer, 22 W. R., 79 U*>74).
It is only evidence of specific conduct on the part of the accused, from Breach of the
which the reasonable and immediate inference is that they are likely to com- JJJJJ^ -Evid-
mit a breach of the peace, which will justify a Magistrate in adjudicating
under section 491 of the Code of Criminal Procedure, 1872. Rajah Run
Bahadoor Singh v. Rani Tilessuree Koer, 22 W. R., 79 (1874).
In a case of dispute regarding land of a considerable area, in which both Breach of the
parties contended that they held pos ession of the area through the means of p?"* " ~
ryots, it was held that the Magistrate, instead of making an order under sec- *lon-
tion 530 of the Code of Criminal Procedure, 1872, that the land should remain
in the possession of one of the parties until the decision of a competent Civil
Court, should hive proceeded to consider the question which party was in
possession of the constituent portions of the land, piece by piece, by the lands
of his ryots. Muihojsoodun Shahi v. Btjoy Gobind Chowdhru, 21 W. R., 55
(1874).
Prevention of Offences. [Chap. XII:
Posseuion, Wlicro a Magistrate found that an order of his predecessor, made two
docoasor>r-''r0" years previously, with regard to possession of certain land, had not been com
plied with, he enforce 1 the or ler, and changa 1 the possession in accordance
witli that order. Held, that tiie Mag'strate ought, under section 491, Code of
Criminal Procedure, 1872, to have maintained the possession which he found,
even if it was inconsistent with his predecessor's order, and that ho ought not
to have taken any steps in the matter, unless so.ne one actually in possession,
and guaranteed possession by thit order, came to complain to him that his
possession was threatened, or that he had just been forcibly turned out, and
asked, in pursuance of that or ler, t > be maintained in possession. The Queen
v. Protab Chandra Biroomh, 21 W R., 2 (.1873).
Hi'—Breach In a case in which the Magistrate passe 1 an order uu ler section 518 of
of the peace. tl)e Co(i(J ()£ (jrjinjnai proce |urei 1372, for closing a hat, on the ground that
it was only a mile apart from another hat, and a breach of the peace was
not unlikely, the Sessions Judge recommende 1 that the order should be set
aside, section 518 applying only when a breach of the peace was imminent.
Held, that under Explanation II., section nlH, the order could be made in all
cases upon such information as satisfied the Magistrate, and as the order was
one which the Magistrate had power to make, and was not contrary to law, the
High Court could not, under section 297, set it aside. Orders made under sec
tion 518 are not judicial proceedings, and therefore are not within section
297. Bholanath Bote v. Komuruddin, 20 W It., 53 (1873).
Llnd d'hPUfeh ê poaês9'on regarding which parties are required to give proof in a
peaw-PossoV3 ease under section 530 of the Code of Criminal Procedure, 1872, relating to
sion. a dispute for land in respect of which a breach of the peace is apprehended,
is possession at the time the proceedings are instituted by the Magistrate, and
not possession at the time the Magistrate comes to his decision. In re Pirthi-
ram Chov-dhry Rai Bahadoor, 20 W. K., 51 (1873).
Breach of the Under the provisions of section 318 of the Coi'e of Criminal Procedure,
P6"06- 1861, the Magistrate should specify the nature of the information received by
him, and state the principal facts which by the exercise of a judicial discre
tion, he derives therefrom, and which, in his judgment, constitute grounds
for believing that a dispute concerning certain land exists, which is likely to
induce a breach of the peace ; and the roobnkaree which section 318 pres
cribes should plainly set out, without reference to any other documents at all,
the actual facts which constituted the ground for such belief on the part of
the Magistrate. In re Khhoree Mohun Roy, 19 W. R., 10 (1873).
"ocoiiiiimces Where the manager of an in ligo factory is obliged to enter into recog-
(hy m linger as nizances to keep the peace under section 288, Code of Criminal Procedure,
toroMheTiia'iiu 'ôl, tnere '8 n0 reas '"• nor nas l'le Magistrate any authority, to extend the
factory)- ' Ac- order to the proprietor of the factory also. The statements made by both the
m9tti!inS8of*iOU ' t'onten(l'ng parties before the Magistrate must be regarded as evidence upon
meaning o . wnjcn tne Magistrate may act under the said section, if he thinks it suffici
ent, without taking further evidence upon the subject. There is no reason
why the Magistrate, if he is satisfied that the circumstances require it, should
not make an order under section 318 as well as under section 288. By actual
possession is meant, not possession by putting up a tent upon the land,
nor merely bodily possession, but the possession of a master by his servant,
or the possession of a landlord by his immediate tenant, i.e., the person who
pays rent to him (not, as in this case, the possession of a superior landlord to
whom the occupier of the land did not pay his rent), or the possession of
the person who has the property in the land by the usufructuary. J D
Sutherland v. L. C'roidy, 18 W. I!., 11 (1872).
DeTcV-»nm- Although there is no provision in Chapter XXII of the Code of Criminal
iioni- Wit- Procedure, 1841, for the summoning of witnesses, it is the duty of a Court in
cases of breach of the peace under section 318, if the parties cannot produce
S. 145.] Prevention of Offences 159
their witnesses, to issue summonses for their attendance. Shamasunkur Mo-

zoom lar v. Ranee Anundmoyre Dasaja, 18 W. R., 64 (1872).
Section 318, Code of Criminal Procedure, 186', refers only to disputes con- Land-dispi.te» -
cerning land, but not to a dispute as to the right to collect the rents of a joint rigft'to" collect
undivided estate in a certain proportion. The latter must be dealt with under ,hare of rent,
circular order No. 10 of 18th April, 1863, and section 26, regulation V. of 1812,
•is amended by regulation V. of 1827. Ramrunginee Dasaee v. Gooroodaaa
Hoy, 18 W. R., 3G (1872).
A certificate under Act XXVII of 1860 only authorizes the holder thereof j^tcXXyn
to collect the debts due to the estate of a deceased person, but does net entitle 0f igfio_i)i,|,u.
him to recover or to take possession of any property belonging to the deceased tod possession
from any person who may be in possession (whether wrongful or rightful) of °^dure'!*0_1'r<>'
that property. The Magistrate ought to maintain the person in possession, and
leave the other party to bring a unit in the Civil Court to prove his title to the
property independently of the certificate. Sertaram Sahoo v. Hoy Sheo Gho-
lam Sahoo Bahadoo; 18 W. It.. 35 (1872).
The decision of the Deputy Magistrate was quashed, (1) because, the pro- Ij-aU* proper-
pcrty in dispute being ijmalee, he had no jurisdiction to try the dispute under Jtodin'1iwo8di»-
section 318, Co le of Criminal Procedure, 1861, but ought to have proceeded in tricts.
the maimer laid down in circular order No. 10, dated 16th April, 1863 ; and (2)
because, a portion of the disputed julkur being situated within the district of
Backergung. , the Deputy Magistrate of Furreedpore hail no jurisdiction with
reference to that portion of the julkar which was admittedly not within the
limits of his jurisdiction. Goluck Chunder Roy v. Raj Alohun Bote, 17 W.
If.., 33 (187:')
The mere service of a notice upon a Mo/ussil Naib, who takes no steps Dispute regmd-
whatever to consult his employer or act under her directisns, is not such a no- "nnmlî^tice
tice as is contemplated by section 318, Code of Criminal Procedure, 1861, in on uo/ttuii Xuti>.
a case of dispute regarding possession of land. Ramrunginee Dassee v.
Gooroodaaa Roy, 17 W. R., 9 (1872).
Where a Magistrate, proceeding under section 318, Code of Criminal Pro- |J^h I"0"*--
cedure, 1861, decides on the evidence in favor of a party as being in possession iâ-disputcs
of the disputed land, the High Court cannot re-consider the Magistrate's de- --Breach ot the
cision, and decide which party is in actual possession. Bharut Chunder Bote V^^-
v. Dicarkanath Chou-dhry, 17 W. R., 86 (1871).
A Magistrate is not competent to interfere under section 318 of the Co le Civil Court de-
of Criminal Procedure, 1861, with the execution of a decree of the Civil Court. ^^Z^êh oi
When a Civil Court decree lias been passed regarding the wholoor any p< rtion
of disputed laud, it is the Magistrate's duty to maintain that decree, and he
cannot again institute under section 318 proceedings regarding the land cover
ed by it. Rai Mohan Roy v J. P. Wise, 16 W. R , 24 (1871).
A mere local enquiry and statements of parties not on oath are not sufficient Breach of the
data on which a Magistrate can decide, under section 318 of the Code of Cri- JJauf-Lg't"\0_
miaal Procedure, 1861, what party is in possession of land with regard to mentMi oath.6
which a broach of the peace is apprehended. The Government v. Kali Chun-
droShah. 16 W. R., 13 (18.1).
A Magistrate, before proceeding under section 318 of the Code of Cri- Evidence -
minal Procedure, 1861, must be satisfied by evidence that dispute likely to in- Brc^ôTthef"
dace a breach of the peice exists. A police report is not evidence. In re peace.
Bhadrastcari Chowdhrani, 7 Ben L. R., 329 (1871).
It, a proceeding under section 318 of the Code of Criminal Procedure, Evidence on
1861, to determine the right of actual possession, it is necessary that evidence oath,
should be taken on oath The Queen v. Kali Chandra Shah, 7 Ben. L. R.,
322 (1871).
i6o Prevention of Offences. [Chap. XII-
Dispute as to A Magistrate cannot proceed under section 318 of the Code of Criminal
»"f/«eSsl°n '° * Procedure, 1861, in a case of dispute arising out of a right of succession to a
muth and its appurtenances, but should apply to the Judge under the provi
sions of Act XIX of 1841 to appoint a curator, or make some order with
regard to the property, till the right of succession is determine!. The grant
of a certificate under Act XXVII of 186 1 does not decide the title to such
land. The Queen v. Senput Giri Gossuin, 11 \V. B , 3 (1869).
Land-dispute— When in a case under section 318 of the Code of Criminal Procedure,
Procedure. 1861, a Magistrate has taken any evidence, he is not justified in refusing to
proceed with the case, because the parties neglected to file written statements
on the day fixed for tiling the statements. In re Goluck Chunder Mytee, 11
W. R., 9 (1869).
Jurisdiction of A Magistrate has no power to decide a question of possession, under sec-
LikeHhôd^f tion 318 of the Code of Criminal Procedure, 1861, until he lias recorded a
a breach of the proceeding stating the grounds of his being satisfied that the dispute for pos-
P6"08- session is likely to induce a breach of the peace. In re Kathi Kishor Roy v.
Tarini Kant Lahori, 3 Ben. L. B., 76 (1869).
Disobedience of When an order, under section 318 of the Code of Criminal Procedure,
orders. 1861, was made between A on the one side and B and the tenants of B on the
other, declaring that A was in possession of the property in dispute, held,
that this order was only binding on the actual parties to the case before the
Magistrate, and that subsequent tenants of B could not be criminally punish
ed for disobeying the order in question. In re Gopal Burnawar, 3 Ben. L. B.,
13 (1869).
Corticate ~ A an^ B ,ia<^ a dispute about possession of a certain muth. A was de
clared by the Magistrate, under section 318 of the Code of Criminal Procedure.
1861. to be in possession. Subsequently B got a certificate under Act XXVII
of 1860, and applied to the Magistrate for possession, which was given him.
Held-, that the Magistrate's order giving possession to B was irregular, and
must be set aside. Mahant Dhanraj Giri Goswami v. Sripati Giri Goswami,
2 Ben. L. B., 27 (1869).
Lund-disputes- To satisfy the requirements of section 318 of the Code of Criminal Pro-
Hreach of the cedure, 1861, a Magistrate must himself enquire into the likelihood of a broach
of the peace happening, and must come to a judicial decision upon it ; and
in conducting the subsequent investigation, he must examine the witnesses
whom the p irties have tendere 1. Mutammat Anun lee Kooer v. Ranee Soonaet
Kooer, 9 W. B., 64 (1863).
Possession of Two investigations under section 318 of the Code of Criminal Procedure,
1861, were before a Magistrate who, after deciding one of the cases, remark
ed on the other that, because the lands adjoined, he had taken the evidence
in the two cases together, and found it unnecessary to continue the enquiry
further. Held, under section 404, that the parties kept out of possession were
entitled to a full enquiry. Messrs. Watson <£ Co. v. Ranee Surnomoyee,
8 W. B., 63 (1867).
Dispute to a In deciding a dispute as to the right of water, the Magistrate must
right of water. f0«,ow strictly the course po:nted out by Chapter XXII of the Code of Cri
minal Procedure, 1861. Queen v. Ramnalh, 7 W. B., 45 (1867).
Land-disputes— Under section 318 of the Code of Criminal Procedure, 1861, a Magistrate
Possession. can on]y trv tne qUe8tj0n of possession without reference to the right of
possession. Queen v. Mutammat Imam Bundee, 7 W. R., 26 (1867).
S. 146] Prevention of Offences. 161
In a case of disputed possession of land under section 318 of the Code Land-disputes—
of Criminal Procedure, 1861—Held, that the Magistrate was wrong in not l'rocedure-
recording a sufficient proceeding showing the grounds upon which he was
satisfied that the dispute was one likely to lead to a breach of the peace ; and
that, if the parties consented to waive that point by consenting to go into the
whole question, the Magistrate was wrong in taking the title of one person as
prima facte evidence of his possession, and throwing the onus on the other,
and precluding that other from proving his title. Amrithnath Jha v. Ahmed
Ilka, 6 W. B., 61 (1866).
A Magistrate ought not to interfere, under section 318 of the Code of Land-dispute-
Criminal Procedure, 1861, with the execution of a decree of the Civil Court. dcT^croeTf
If called in to interfere at all because he is apprehensive of a breach of the Civil Court,
peace, he should, under section 319, maintain in possession the person who
has been actually put in possession by a decree of the Civil Court. Shwna
Soondery Delia v. Messrs. Jardine, Skinner & Co., 6 W.B., 10 (1886).
Held, that it would be highly technical and unnecessary to intercfere Land-disputes,
with a Magistrate's order under section 3!8 of the Code of Criminal Proce
dure, 1861, on the ground that the Magistrate had not formally stated that he
was satisfied that a dispute likely to induce a breach of the peace existed, when
obivously the Magistrate hail information of that kind before him. Musam-
mat Zuhoorun, 6 W. K., 4 (1866).
In case of disputes concerning the possession of land under section 318 Land-diaputes-
of the Code of Criminal Procedure, 1861, the Magistrate has no jurisdiction to j^JJStnitc" °
interfere unless he is first satisfied of the existence of a dispute likely to cause
a breach of the peace. Deioan Elahee Newaz Khan, 5 W. B., 14 (1866).
A Magistrate is quite justified in preventing a person from entering upon rossession of
land in the possession of another. Queen v. Saadul Khan, 3 W. It., 19 (1865). J^nd_Tre*paM'
Before passing an order in a case of disputed possession of land, &c, the Di«r>ute^re«artl-
procedure enjoined by section 316 of the Code of Criminal Procedure, 1861, offaiiaT&c.83'0'1
should be carried out. Queen v. Seetanath Boy, 3 W. R., 9 (1865).
A Joint Magistrate vested with full powers is not quoad cases instituted Joint Majris-
before and tried by him, subordinate to the Magistrate ; and the latter officer has w?tMun powers
no power to quash his proceedings or to hear them on appeal. In a case of (not subonli-
dispute concerning a right of way, tho Magistrate, instead of deciding against [Vate/^DispiUu*
the complainant on the ground that he already has another way of approach to concerning
his own house, ought to enquire whether or not the new road has been in the right of way.
use and occupation of the complainant, and, if so, to retain him in it, leaving
the owner of the land to determine the question of right to the easement in the
Civil Court. Section 32 ( of the Code of Criminal Proce lure, 1861, does not
require that there should be an apprehended breach of the peace before the
authorities can interfere to decide a right of way. Queen v. Toyluckonauth
Sircar, 2 W. R., 64 <1865).
The Deputy Magistrate's order, awarding absolute possession of the land, Possession of
was quashed, (1) because the Deputy Magistrate was bound, under section 318 '«nd.
of the Code of Crimiual Procedure, 1861, to enquire into the fact of posses
sion and decide accordingly ; and, according to his own statement, the posses
sion was found in the defendant ; and (2) because the plaintiff claimed only a
right of way over the land, and not possession of it. Qu:en v. Sager Maho
med, 1 W. B., 25 (1864).
146. (/) If the Magistrate decides that none of the parties Power to attach
was then in such possession, or is unable t> satisfy himself as to ffi^ °' '"
which of them was then in such possession of the subject of
11
162 Prevention of Offences. [Chat. XII.
dispute, he miy attach it until a competent C«>nrt h:»s determined

the rights of the parties thereto, or (lie person entitled to rxwses-
sion thereof.
(2) When the Magistrate attaches the subject of dispute,
h 3 may, if he thinks fit, appoint a receiver thereof, win, subject
1 1 tho control of tho Magistrate, shall have all the powers of a re
ceiver appointed under the Code of (Jivil Procedure.
Far piwers, dutie*, and liabilities of a receioer, see Chapter
XXX VI ot Ad XI V of 1882, sections 503-505 : ice also i.ote to
section 88 ante.
Possession, in- In setting aside an order passu i by a Magistrate* under section 145 of the
auJf.l'*h(M«*?»- ycxIe of Criminal Procedure, 1882, the High Court has power itself to pass
tr..to is to deter- such order as should have been made by tlte Magistrate in tlte case. It is im-
liiiiu- who wasîn p^^lnle t(> lay down any hard-and-fast rule which may be applicable to all
li.„'rSljwssed for case3 as to tlte exact {x>int of time to which an inquiry under section 145 mnst
Httacmnent. be directed, and the time at which possession must be found in one party or
the other must be governed by the facts of each particular t-ase. To bold that
the Magistrate is preelu led from enquiring into anything before the date when
he actually commenced his own proceedings might in some cases lead to a
person who has been acting in an unwarrantable manner misusing the process
of the law to enable him to carry out a high-handed and improper scheme
which could never have been the intention of the Legislature. In a proceed
ing under section 145 regarding a dispute between two parties concerning
certain collieries, it appeared that the first party were certainly in possession
of the buildings which contained tho office where the biasness, of the col
lieries was transacted, and where all the cash books and the papers of the
business were kept, and that the second party had during a period of fourteen
days prior to the commencement of tho proceedings succeeded in obtaining
possession of the pits, wharves, tramways, etc., of the colliery by what the
Court considered to be a high-handed and improper scheme and acting in an
unwarrantable manner. Tlie Magistrate considering himself bound to find
who was in ac tual possession otthe date of the commencement of the proceed
ings by himself, passed an order in favor of the second party. Held, that
such order was bad, and that as the second party was undoubtedly not in
possession of the whole of tlie property in dispute, and the effect of it was to
place them in possession of tins portion that was in the possession of the first
party, the proper order to make under such circumstances was one under sec
tion 146 attaching the property. The Kalraa-Jherriah C<xd Company v. Sib-
krishta Daw and Company, [. L. B., 22 Cal., 297 (181)4).
Attachment ot A Magistrate, in making an order under Criminal Procedure Code, 1882,
property in ilia sections 145 and 146, must inquire into the question which party was in actual
putc. possession at the time of the institution of the proceedings and not at the tune
when the order is made. In makingthis enquiry the Magistrate may presume
that when a vendor sells part of a property he retains all that he does not sell,
Agra Bank, Limited, v. Irishman (respondent), I. L. It., 18 Mad., 41 (I8'J4).
Onler pnneil Where a Magistrate has passed an order under section 145 of the Crimi-
uaZ pTO-cjxT Procedure Code, 1882, whereas the proper order in the case should have
in«s taken un- been one nndcr section 146, the High Court on revision will make tho order
der section U5— wl,jt.|, the lower court ought to have made. Case in which the High Court
rower o . Court mi revjs|-(in el,tere 1 into the whole of the evidence in the case. Reid v. liichard-
Evirlpnoo on son I L. I! . 14C«1, 311 (1887).
revision.
The right to restrain another from exercising ordinary proprietary rights Burden of proof
over his own land is of the nature of an easement different from the ordi- —Easf!llle,lt-
nary rights of owners of land, the burden of proof would, therefore he upon
the party alleging such rights. In re Mohun Thakur v. Kitsen Sundari, I.
L. H., 11 Cal., 52 (1884).
A dispute having arisen regarding the possession of certain land, an Dam.-ure— Re
order was passed, under section 531 of the Code of Criminal Procedure, motencss - Dis-
1872, forbidding both plaintiff a id defendant to interfere with the land until J^Mw^
either established his title in a Civil Court. The land in consequence of this rial order—Non-
order was not cultivated in the following year. The plaintiff sued for damages cultivation,
for the luss of profits resulting from non-cultivation of the land : Held,
that the damages were not the probable result of the defendant's act, being
the consequence of the order of the Magistrate. Ammani Ammulv. Selluyi
Ammal, I. L. P.., 6 Mad., 42G (1883).
The donbt upon which a Magistrate can act under section 531, Code of Doubtful nosses-
Criminal Procedure, 1872, must arise from his inability to decide on evidence !\0t'10Î"[t((j'[!"^
offered by the contending parties as to their possession and not on a doubt 0f ciVi? Court,
entertained without such enquiry. A Magistrate, acting under section 530
cannot interpret the meaning of a decree of a Civil Court. He can determine
only the fact of actual possession. In re Rain Leelanund Singh Bahaloor,
1 Cal. L. R., 273 (1877).
It is only when, after recording proceeding under section 530, Code of Possession— At-
Criminal Procedure. 1872, and taking evidence, a Magistrate decides that nei- tacUment order
ther party is in possession or is unable to satisfy himself as to which party 0 ' a"18 rtt °-
is in possession that he can, under section 531, attach land in dispute. He
is not competent summarily to order attachment without such preliminary
proceedings. In re Ram Soondaree Debee, 1 Cal. L. K., 86 (1877)
Where a Magistrate, being in doubt as to which of two persons was right- Broac'lA?[ '{jf
ful owner o"f some disputed property, attached it in order to prevent a breach went.
of the peace, and released it on their coming to an agreement, but subsequently
re-attached it on the appearance of a third claimant, from whose attempt to
obtain possession a breach of the peace was apprehended. Held, that the Ma
gistrate was only competent to order a fresh attachment after taking the prelimi
nary steps under section 530 of the Code of Criminal Procedure, 1872, if on
completion of enquiry he found himself in the position described in section
531 ; and that, if there was any new dispute, he ought to have proceeded de
novo ; but that the best course to pursue would be to exert his powers under
Chapter XXXVII. Ihe Queen v. Kaly Kishore Roy, 2i W. P.., 68 (1876).
A Deputy Magistrate, after'iiotice issued under the Code of Criminal Pro- Attachment i>/
cedure, 1872, section 530, to two parties, finding himself unable to determine ru '
wdio was in possession, attached the property in dispute. Upon this, a third
party represented that he, as landlord, had taken possession of the land on the
death of the persons to whom it had been leased. But the Deputy Magistrate
refused to remove the attachment, holding that the landlord's possession w s
without cjlor of law. Held, that the duty of the Deputy Magistrate, under the
circumstances, was to withdraw his order. Joykissen Mookerjee v. Peary Mo
han Mookerjee, 24 W. P.., 40 (1875>.
A Magistrate is bound, before attaching the property in dispute, to take Procedure—
evidence for the purpose of ascertaining wdio was in actual possession of the Land-dispute,
subject of dispute, and to record his grounds for being satisfied that a breach
of the peace was likely to occur. Reference in re Mukhodn Dosser, 18 \V. H.,
4 (1872).
A Magistrate may lease land attached under section 319, Co lc of Criminal Lease of pro-
Procedure, 1861. Reference hi/ Magistrate of Dacca, hi re Grecsh Chawler wn>' *ltM'M'
Doss, 17 W. K., 38 (1872).
164 Prevention of Offences. [Chap. XII.
Attached" pn* A SoHsi(>ns J'"'ge ha* no power to interfere with an order of a Magistrate
peUv-Land- attaching dispute 1 land under section 319 of the Code of Criminal Procedure,
disputes. 1861. Bwronath Cliowdhry v. Rajendcr Chunder Roy, 15 W. IX., 1 (1871).
•Attachment - The power of attaching land regarding which there is a dispute conferred
Land-disputes, on a Magistrate by section 318 of the Code of Criminal Procedure, 1861, ex
tends to disputes as to possession of land of which rival zemindars are in pos
session by tlieir ryots. In thi mailer of J. W. Mateyk, 15 W. R., 1 (1871).
Dispotes con- 147. Whenever any such Magistrate is satisfied as aforesaid
ESStSfjUi °*se ât a dispute likely to cause a breach of the peace exists concern
ing the right of use of any land or water ( including any right of
way or other easement over the same) within the local limits of his
jurisdiction, ho may inquire into the matter in manner provided by
section 145 ; and may, if it appears to him that such right exists,
inaka an order p rmitting such thing to be done, or directing that
such thing shall not be d ue, as the case may be, untd the person
objecting to such thing being d me. or claiming that such thing
may be done, obtains the decision of a competent Court adjudging
him to be entitled to prevent the doing of, or to do, such thing, as
the case may be :
Provided that no order shall be passed under this section
permitting the doing of anything where the right to do such
thing is exerciseable at all times of the year, unless such right has
been exercised within three months next before the institution of
the inquiry ; or, where the right is exerciseable only at particular
seasons or on particular occasions, unless the right has been
exercised during the last of such seasons or occasions before such
institution.
Dispute con- '^''0 wori'H " right to do anything in or upon tangible immoveable pro-
ceniins jaikitr perty " in section 14? of the Criminal Procedure Co le, 1882, include julkur
the'' peace—Iro- "K™- ^ Magistrate is competent to take action under that section in the
miMont danger case of a dispute concerning the exercise of ajulkur right. If tlie materials
— Grounds for upon which the proceedings are based do not disclose the fact that there is
ing"pr'oceedfiiK» an imminent danger of a breach of the peace, then the Magistrate has no
under section jurisdiction to take action under section 147 of the Criminal Procedure Code.
lie "âdopted ^n.v cv'('ence tnat 'lo may take m ",e course of the trial cannot give him a
by Mnri»i[...[o jurisdiction which ho does not otherwise possess. The proper course to be
Jjtol^dispute adopted by the Magistrate, when a dispute, concerning easements, &c, arises,
month "£,ea8e" is to bind down under section 107 of the Code such of the persons as are
eiists. ' likely to disturb the peace. Kali Kissen Tajore v. Anund Chunder Roy,
I. L. H. 23 Cal., 557 (181)6).
Hiiclit of fishinir The words "right to do anything in or upon tangible immoveable pro-
ProritsT"'"^ " in w501'00 147 of the Criminal Procedure Code, 1H82, include the right
—ParticV to'cu- °^ fishing. The term " easements " includes profits a prendre : it has not
quiry. been use I by the Legislature of this country in the restricted sense in wdiich
it is used in English law so as to exclude profits a prendre. For the purpose
of the enquiry contemplated by section 147 of the Criminal Procedure Code,
it is sufficient if the persons who claim for themselves the right, though that
right is derived from others, are made parties The proprietors are not
necessary parties. Dukhi 3Iull«h v. /l<il<rtn/, 1. L. R., 23 Cal., 55 (1895).
S. 147.] Prevention of Offences. »65
A Magistrate, first-class, made an order under section 147 of the Bispute about
Criminal Procedure Code, 1882, forbidding certain persons from taking fûinjl1 wor-r
part in the worship and other religious ceremonies connected with certain ship und other
temples. As to the right to perform these ceremonies, the High Court had reliKtous rights
previously held that Civil Courts could not determine trivial questions of jurisdiction ot
mere dignity or privilege. Held, that the matters in dispute not being Magistrate to -
adjudicable by a Civil Court, section 147 did not give the Magistrate juris- ".'ês'^liero'
diction to forbid the persons named in the order from taking part in the civil Courts
ceremonies in question. Held, also, that the order was bad in form, as it ^[j"/^^.™''
coutained no restriction of the time during which it was to operate. Held, aure to be
further, that in cases where a Magistrate apprehends a breach of the peace, adopted where
his proper course is to act under the provisions of Chapter VIII of the 5j£2£|g app1,1^
Criminal Procedure Code, 1882. In re Atma Ram Narayan Parab, I. L. K., {tended.
14 Bom., 25 (1889).
Where a dispute likely to cause a breach of the peace is shown to exist Dispute con-
concerning the right to perform a religious ceremony in a mosque the Magis- cern'n|! . r¥bl
it ■ the
trate may exercise .1 powers conferred
1 ?iby section i147
in ot£ iL
the r-Coile
j ofc n(.-riiiiinal
■ ■ i to otHcuite 111 o
mosqiie.
Procedure, 1882 Muhammad Mutiliar v. Kunji Chek Musaliar, I. L. R., 11
Mad., 323 (1887).
The lessee of certain grass land in a village disputed the right of the Reasonable
villagers to graze their cattle on his land during the rainy season. On the 26th breach"^
August, 188li, he prosecuted twenty-one villagers before the second-class Ma- peace—1'olice
gistratc for having unlawfully brought tlieir cattle on his land, and committed report-
mischief. On the 5th September, 1886, and pending this prosecution, the villa
gers assembled on the land in question, and there was a riot. The offenders
were convicted and punished. In appeal, the Subdivisional Magistrate, on
the 1 1th Ovtober, 1886, upheld the conviction. On the same day, finding from
the police report that there existed a dispute between the lessee and the vil
lagers as to the right of the lutter to graze cattle on the grass land, and that the
dispute was likely to lead to a breach of the peace, the Subdivisional Magis
trate thought it necessary to hold an enquiry into the matter, under section
147 of the Criminal Procedure Code, 1882. He, however, postponed the
enquiry until the decision of the second-class Magistrate in the mischief case.
In that case the Magistrate found that the villagers had no right to graze
cattle on the land in question, and that the lessee was in exclusive possession
of it. He, therefore, held that the villagers had unlawfully entered upon the
land ; but, as the damage done was inappreciable, he acquitted the accused on
the 19th October, 1886. The Subdivisional Magistrate being of opinion
that after this decision a breach of the peace was probable, held the enquiry
under section 147 of the Co le. He found that the villagers had the right of
grazing cattle on the land in question during the autumn, and that they had
exercised this right in the last preceding season. He, therefore, made an
order allowing the right of grazing to the villagers. On application by the
lessee to the High Court under section 435 of Procedure Code, held, that the
order was illegal. Though the police report afforded some justification for
entering upon an enquiry under section 147, still after the rights of the
parties had been judicially pronounced upon by the second-class Magistrate
in the sense that the villagers had no right of grazing cattle on the land in
question, there was no reasonable ground for apprehending any further vio
lence, and, therefore, no necessity for holding tlie enquiry under section 147.
In re Balkrishna Amrit Pradhan, I, L. K., 11 Bom., 584 (1887).
The right to restrain another from exercising ordinary proprietary rights Burden of
over his own land is of the nature of an easement different from the ordinary proof- Ei«e-
rights of owners of land ; the burden of proof would, therefore, lie uuon the me" '
[lit!arty alleging such rights, ilari Mohun Thakur v. Kissen Sundari, I. L. K.,
111 Cal., 52 (1884).
Prevention of Offences. [Chap. XII.
Possession, or- It is the duty of a Magistrate, before taking proceedings under section
der of Criniinnl 145 0£ tne Criminal Procedure Code, 1882, to satisfy himself whether there
—l)i"i)nte Skclv '» 'lny dispute likely to cause a breach of the peace, and that the suggested
Ubhoy
„ ,•
Funen.k.reC t_ tantsAofdispute
a town having
as to thearisen
right between the Muhammadan
of the latter andalong
to carry corpses Hindua inhabi-
certain
public street to the burning ground, the Magistrate passed an order purport
ing to be under section 532 of the Code of Criminal Procedure, 1872, direct
ing that the Hindus should carry corpses by the nearest route to the burning
ground and not by the street to the use of which for such purposes the Mu-
hammadans objected. Held, that the order of the Magistrate was illegal. In
re Narayana Taragan, I. L. B., 7 Mad., 49 (1882).
Riirhtof wny— Where a complaint was made to a Magistrate that an obstruction had
Obstruction." been raised and existed on land reserved by Government and dedicated as a
public roadi: Held, that an ex parte order, purporting to be made under section
532 of the Code of Criminal Procedure, 1872, directing the party in posses
sion not to retain possession of the land until he should obtain the decision of
a competent Civil Court adjudging him to be entitled to exclusive possession,
with a further direction to remove the obstruction, was bad in law. In re
Alfred Lindsay, I. L. B., 4 Mad., 121 (1881).
Easement— The word " easement," as used in the Limitation Act, 1877, has, by
Fishery -Pres- forcc 0f the interpretation clause (section 3), a very much more extensive
S"r?»3«—Vser. meaning than the word bears in the English law, for it includes any right
not arising from contract by which one person is entitled to remove and
appropriate for his own prolit any part of the soil belonging to another, or
anything growing, or attached to, or subsisting upon the land of another.
An casement, therefore, under the Indian law embraces what in English law
is called a profit a prendre, that is to say, a right to enjoy a profit out of the
land of another. A prescriptive right of fishery is an " easement " as defined
by section 3 of the Act, and may be claimed by any one w ho can prove a
"user" of it, that is to say, that he has of right claimed and enjoyed it
without interruption for a period of twenty years, although he does not allege,
and cannot prove, that he is, or > as, in the possession, enjoyment, or occupa
tion of any dominant tenement. Chundee Churn Hoy v. Shib Chunder Hun-
dtd, I. L. B., 5Cal.,945 (1880).
Rixhtofwny. <i«tes having been placed at the end of a private road by a person
claiming to be its sole proprietor, with the intention of preventing the use of
such private road by the public between the hours of sunset and sunrise,
and the Deputy Commissioner of Dorjeeling, acting for the public, having
obtained from the Magistrate an order under section 532 of the Criminal
Procedure Code, 1872, " that possession of the private road be not taken by the
person claiming to be proprietor to the exclusion of the public
until he shall have obtained the decision of a competent Civil Court adjudg
ing him to be entitled to exclusive possession." Held, that there being no evi
dence of any one having exercised or claimed to exercise the right of passing
over the road between sunset and sunrise, there was no dispute under section
532 of the Code ; and that the order of the Magistrate was made without
authority, ami must be set aside. Section 532 does not enable a Magistrate to
make a purely declaratory order. It only enables him to prevent arbitrary
interruptions by any person of rights actually enjoyed, which have been exer
cised by the public or a person or class of persons. In re Maharaja of
Iittrdican v. The Chairman of the. Darjeelinq MuiiieijHilitu, I L 1!., 5 Caf„ 194
(1879).
An order which declares that, as between the parties to a contention, Dispute us tu
certain laud in dispute does not belong to the public, is not one the contra- a" •
vention of which can form the subject of an order under the Penal Uoile,
section 188. Unnoda Proshad Dutt v. Ranee Shama Sooruluree, 24 \V. li.,
20 (1875).
In order to found the jurisdiction of a Magistrate to take action under Obstruction—
section 532 of the Code of Criminal Procedure. 1872, it is necessary that n j^^^tion;
dispute exist between two persons concerning the right to the use of any
land or water, or any right of way ; tlie jurisdiction is intended for the
purpose of preserving the public peace. Reference by the Sessions Judge of
the 2i-Peryunnahs in re Rosik Lull Nnndi v. Kartik Shant, 22 W. 1!., 48
(1874;.
In a case in which a Magistrate ordered a person either to remove an p^hwljj'—Jury
obstruction to a path leading to a road or to show cause why such order should
not be enforced, and in which, subsequently, the Magistrate, on the application
of the party charged, appointed a jury under section 523 of the Code of Cri
minal Procedure, 1872, it was held that the question the jury should have been
told to try was the question whether the first order of the Magistrate was rea
sonable and proper, and for that purpose to consider whether there was a
bona fide question between the parties as to the right of way over this parti
cular piece of laud. Rty O.nesh Chunler Sen v. Ichaualh Mozum.lar, 21 W.
K., 64 (1874).
Where land is acquired by Government for public purposes under Act VI ûrMSM'-'Staht
of 1857, the title of Government to the land is absolute, and the public have ofGovernment—
uo right of way over it. Reference, bu the Sessious Ju lge of the 24-PergunHahs KiglUol way.
in re li. B. F.uwick, 14 W. R., 72 (1870).
A Magistrate is bound, under section 320 of the Code of Criminal Procedure, Bight jl way.
18(31, to investigate a case in which the complainant alleged that his right of
way had been interfered with, and ought not to refer the complainant to tlie
Civil Court. Reference by the Sexsiou* Ju Ige of Puriwah in re Bhuiro Mundttl,
14 W. 11., 28 (1870).
puto Arelating
Magistrate
to thehas a discretion
pos*ession wdiether
of land hesection
under will interfere in Code
320 of the a caseofofCrimi-
a dis- |H™^'U
}i ** 0n 'ofYlru
nal Procedure, 1801. The complainant must make out a sufficient case for the
summary interference of the Magistrate under that section. Reference by the
Sessions Ju lye of Runjpore in re Rmsool Nashyo, 11 \V. It., 3 (18S'J).
The jurisdiction given by section 320 of the Code of Criminal Procedure, Dispute us to
1861, to deci le for a time the right to enjoyment of property should not be 1 '
exercised except on clear a id satisfactory proof. Where the only evidence is
that of user it should be such as to show satisfactorily acts of enjoyment
exercised as a matter of right and permitted uninterruptedly for some consi
derable length of time. Reference by the Sessions Judge of Salem, 4 Mud. H.
C, App. XXVI, (1809).
Section 320 of the Code of Criminal Procedure, 1861, is not intended to Dispute con-
provide a substitute for a civil suit to declare the rights of the parties, but only {J!',"."* "*
empowers the Magistrate to order that possession shall not be taken by any
party to the exclusion of the public, until the party claiming possession obtain
a decree for exclusive possession. Reference in re Monmthee llurulk Lall, 0 W .
It., 74 (1866).
The obstruction of a drain into which a sewage of complainant's premises oWstruHioia vf
fell does not fall cither under section 308 or 32 1 of tlie Code of Criminal Pro- urU"-
cedure, 1801, but is matter for a civil suit and injunction. /// re TroyluL-houath
Base, 5 V. li., 58 (1800).
Prevention of Offences. [Chap. XII.
Disputei con- A Deputy Magintnite has no jurisdiction, under section 320 of the Code of
corning right ot Criminal Procedure, 1881, to order a ditch, which was once a pathway, but
water. °r afterwards tilled up, to be opened out, and a wall built upon it, before any com
plaint was made regarding the filling up of the ditch, to be pulled down. Even
if he had such jurisdiction, he should not pass such an order without legal
proof that the use of the ditch and pathway was open to the public or to the
prosecutor. Reference by the Judge of Hooghly, 5 \V. R., 57 (I860).
Removal o< A Deputy Magistrate should proceed under Chapter XX of the Code of
nuisance -Obs Criminal Procedure, 1861, for the removal of an unlawful obstruction from a
tructions on thoroughfare, and not under section 320, which relates to disputes concerning
thoroughfares.
use of land or water. Daroda Persad Mustafee v. Mudoo Soodun Biswas, 5 W.
K., 5 (18G6).
Disputes con- In a case of dispute concerning a right of way, the Magistrate, instead of
cerning right of deciding against the complainant on the ground that he already has another
w,y- way of approach to his own house, ought to enquire whether or not the new
road has been in the use and occupation of the complainant, and, if so, to retain
him in it, leaving the owner of the land to determine the question of right to
the easement in the Civil Court. Section 320 of the Code of Criminal Proce
dure, 1801, does not require that there should be an apprehended breach of the
peace before the authorities can interfere to decide u right of way. Qitcen v.
Toyluckonauih Sircar, 2 W. R., 04 (1805).
Local inquiry. 148. ( 1) Whenever a local inquiry is necessary for the pur
poses of this chapter, any District Magistrate or Subdivisions!
Magistrate may depute any Magistrate subordinate to him to make
the inquiry, and may furnish him with such written instructions as
may seem necessary for his guidance, and may declare by whom
the whole or any part of the necessary expenses of the inquiry
shall be paid.
(2 1 The report of the person so deputed may be read as evi
dence in the e.vse.
Order as to (3) When any costs have been incurred by any party to a
costs. proceeding under this chapter for witnesses, or pleaders' fees, or
both, the Magistrate passing a decision under section 145, section
146 or sect'on 147 may direct by whom such costs shall be paid,
whether by such party or by any other party t > the proceeding,
and whether in whole or in part or proportion. All costs so direc
ted to be paid may be recovered as if they were fines.
On!er for. and An order for, and the assessment of, costs under section 148 of the Code
assessment of, of Criminal Procedure, 1882, should be made at the time of passing the deci
costs—Delay- sion under section 145 in the presence of the parties. Such costs should not
Notice to par
ties. be ordered and assessed by the Magistrate after a long interval, and without
allowing all the parties affected an opportunity to appear and show cause.
Queen-Emjtress v. Tomijuddi, I. L. R., 24 Cal., 757 (1897).
" Magistrate The award of costs under section 148 of the Code of Criminal Procedure,
passing a deci 1882, is a quasi-civil proceeding, and should be made by the Magistrate at the
sion." meaning time of passing his decision under section 145 in the same manner as under
of—Order for
costs. section 218 of the Code of Civil Procedure ; the order for costs of any applica
tion should be made when the application is disposed of. Where, however, the
decision under section 145 was passed on 19th December, 1893, and the appli
cation for costs was made on 21st December, but owing to delay arising from
Ss. 148 — 149.] Prevention cj Offences. 169
the action of the objectors the order for costs was not made until 16th June,
1894 , but then by the same Magistrate who passed the order under section
145: Held, that the order was not void for want of jurisdiction, and, there
being no suggestion that it was unjust or improper on the merits, the Court de
clined to interfere witli it in the exercise of their discretionary power of revision
under section 439. liinoda Sun lari Chowdkurani v. Kali Krislo Pal Choto-
dhury, I. L. B., 22 Cal., 387 (1895).
Where a decision has been given in a case under section 145 of the Crimi- Assessment of
nal Procedure Code, 1882, and an order for costs has been made at the same trete other thin
time and by the same Magistrate there is no objection to the amount of such tho Magistrate
costs being afterwards assesse 1 by different Magistrates if an application for §j£?8j0*/ha't,<1
that purpose is made to him within a reasonable time. Giridhar Chatttrjee v. making the or-
Ehadullah Naskar, I. L. R., 22 Cal., 384 (1895). ^toltkS*'-
When an order to pay costs under section 149 of the Crininal Procedure able time8"0"
Code, 1882, has been made by the Magistrate who decided the case, another Assessment of
Magistrate has jurisdiction to assess the amount of costs. Mahomed' Erthad costs bv Manis-
Ali Khan Chowdhru' v. Saroda Proshad Shaha, I. L. K.,' 23 Cal.,' 37 (1895).
v ' irateMagistrate
the other than
psi»»ii«r the decl-
When a Magistrate passed an order for costs under section 148 of the Cri- ?'°n »nd mak-
minal Procedure Code, 1882, but did not state what the amount was to be, held, bfmrti, *
that his successor in office had no jurisdiction to pass nn order assessing such
costs. Bhojal Sonar v. Nirbau Singh, I. L. R., 21 Cal., 609 (1894). SSStSSSt*""
such costs by
The duty of making an inquiry under section 533 of the Criminal Proce- onfce88orm
dure Code, 1872, should be deputed to a Magistrate, not a canungoe. In re Uma
Churn Sanlra v. Beni Madhub Roy, 7 Cal. L. R., 352 (1880). Enquiry.
In a proceeding under section 530 of tho Criminal Procedure Code, 1872, Possession—
the Magistrate must decide the fact of possession on evidence taken by himself! ""J'-'iLocai in-
and according to the result of a local inquiry made under section 533, unless the quiry-ueport."
parties have consented to be bound thereby. Per Prinsep, J.—The local
inquiry referred to in section 533 should be restricted solely to some question
relating t > the features of tho property about which the dispute lias arisen,
and should not be directed to any matter which can be proved before the Ma
gistrate by oral evidence. In re Baikunt Kumar, 3 Cal. L. R., 134 (1878).
When a local inquiry under section 533 of the Criminal Procedure Code, Local inquiry.
1872, is instituted, it becomes part of the proceedings in the case, and the party
affected by it is entitled to be acquainted with the results of it, and to have an
opportunity of rebutting the disputed Magistrate's report, if he thinks neces
sary so to do. Mir Dhunoo v. Thoma* Brown, 21 W. R., 25 (1874).
CHAPTER XIII.
Pukventivb Action of the Police.
149. Every police-officer may interpose for the purpose of Police to pre-
preventing, and shall, to the best of his ability, prevent, the com- ofiences?"lz<,bla
mission of any cignizable offence,
[23 (Act V. of 1861). It shall be the duty of every police-officer [Duties of police-
promptly to obey and execute all orders and warrants lawfully issued olflcCT^
170 Frerention of Offences. [Chap. XI If-
to him by any competent authority ; to collect and communicate intelli

gence affecting the public peace : to prevent the commission of offences
and public nuisances ; to detect and bring offenders to justice, and to
apprehend all persons whom he is legally authorized to apprehend, and
for whose apprehension sufficient ground exists : and it shall be law
ful for every police-officer, for any of the purposes mentioned in this
section, without a warrant ti enter and inspect any drinking-shop, gain-
ing-house, or other place of resort of loose and disorderly characters.]
[Police-officers [25 (Act V. of 1 861). It shall be the duty of every police-officer
of '"unclaimed to t*'46 charge of all unclaimed property, and to furnish an inventory
property and thereof to the Magistrate of the district.
1)0 subject to 0
MaKihtrnte's or-
der» as to dis- The police-officer shall be guided as to the disposal of such property
posni.] kv suc], orders as they shall receive from the Magistrate of the district.]
[Peculation of [30 (Act V. of 1861). (1) The District Superintendent or Assis-

pubiic awciiib- janj District Superintendent of Police may, as occasion requires, direct
lies and proces- f, ... . . ,1 1 ,• ,
•ions and the conduct of all assemblies and processions on the public roads, or 111
ranie.*]"'8 °' public streets or thoroughfares, and prescribe the routes by which,
and the times at which, such processions may pass.
(2) He may also, on being satisfied that it is intended by any per
sons or class of persons to convene or collect an assembly in any such
road, street or thoroughfare, or to form a procession which would, in the
judgment of the Magistrate of the district, or of the subdivision of a
district, if uncontrolled, be likely to cause a breach of the peace, require
by general or special notice that the persons convening or collecting such
assembly or directing or promoting such procession shall apply for a
license.
(8) On such application being made he may issue a license speci
fying the names of the licensees and defining the conditions on which
alone such assembly or such procession is to be permitted to take place
and otherwise giving effect to this section : Provided that no fee shall
be charged on the applicatien for, or grant of, any such license.
[Music in the (4) He may also regulate the extent to which music may be
atreet.j use(j jn î10 greets on the occasion of festivals and ceremonies.]
[Powers with re- [30 A. (Act V. of 1861). (1) Any Magistrate or District Superin-
jf£dttn0daR"en,h" tendent of Police or Assislant District Superintendent of Police or
sions violating Inspector of Police or any police-officer in charge of a station may stop
crawj0™* 01 »r.y procession which violates the conditions of a license granted under
the last foregoing section, and may order it or any assembly which vio
lates any such conditions as aforesaid to disperse.
(2) Any procession or assembly which neglects or refuses to obey
any order given under the last preceding sub-section shall be dnemed
to be an unlawful assembly.]
[Police to keep [31 (Act V. of 1861). It shall be the duty of the police to keep
toads, ic.f" order on the public roads and in the public streets, thoroughfares, ghats,
Ss. 150-153] Prevention of Offences. 171
and landing-places, and at all other places of public resort, and to pre
vent obstructions on the occasions of assemblies and processions on the
public roads and in the public streets, or in the neighbourhood of places
of worship during the time of public worship, and in any case when any
road, street, thoroughfare, ghat, or landing-place, may be thronged, or
may be liable to be obstructed,]
150. Every police-officer receiving information of a design d»feii,*o0com^
to commit any cugnizabla offence shall communicate such informa- mit 8UCh op
tion to the police-officer to whom he is subordinate, and to any
other officer whose duty it is to prevent or take cognizance of the
commission of any such offence.
151. A police-officer knowing of a design to commit any y™sJlltL!upre"
cognizable offence may arrest, without orders from a Magistrate offences,
and without a warrant, the person so designing, if it appears to
such officer that the commission of the offence cannot be other
wise prevented.
152. A police-officer may of his own authority interpose S^ry'Vo'pub-
t > prevent any injury attempted to be committed in his view to He property,
any public property, moveable or immoveable, or the removal or
injury of any public landmark or buoy or other mark used for
navigation.
[433 (P. C). Whoever commits mischief by destroying or mov- [Mischief by
ing any light-house or other light used as a sea-mark, or any sea-mark, mov!»fj!or°r
or buoy, or other thing placed as a guide for navigators, or by any act J^}1"™^^™
which renders any such light house, sea-mark, buoy, or other such thing house or sen-"
as aforesaid less useful as a guide for navigators, shall be punished with ™j"Jj,,"hiiioex'
imprisonment of either description for a term which may extend to lights.;
seven years, or with fine, or with both.]
[434 (P. C). Whoever commits mischief by destroying or mov- jj" t'J*'?' by
ing any land-mark fixed by the authority of a public servant, or by any moving! etc°,r a
acc which renders such land-mark less useful as such, sha'l be punished b^ûbiic axod
with imprisonment of either description for a term which may extend authority.]
to one year, or with fine, or with both.]
[24 (Act V. of 18C1). It shall be lawful for any police-officer to ffip°liSac;<?n1Jc0er™.
lay any information before a Magistrate, and to apply for a summons, Sion,a£c0Onn
warrant, search-warrant or such other legal process as may by law issue
against any person committing an offence.]
153. [1) Any officer in charge of a police-station may, ief^"™/
w ithout a warrant, enter any place within the limits of such sta- measures,
tion tor the purpose of inspecting or searching for any weights or
measures or instruments for weighing, used or kept therein,
whenever he has rJason t > believe that there are in such place any
weights, m asures or instruments for weighing which are false.
(2) If he finds in such place any weights, measures or in
struments tor weighing which are false, ho may seize the same,
and shall forthwith give information of seizure to a Magistrate
having jurisdiction.
iy 2 Powers of Police. [Chap XIV.
PART V.
INFORMATION TO THE POLICE AND THEIR

POWERS TO INVESTIGATE.
CHAPTER XIV.
cognizable"1 in 154. Every information relating to the commission of a
cases. cognizable offence, if given orally to an officer in charge of a
police-station, shall be reduced to writing by him or under his
direction, and be read over to the informant ; and every snch in
formation, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the sub
stance theraof shall be entered in a book to be kept by such
officer in such form as the L cxl Government may prescribe in
this behalf.
k«1pdi£"Tt0 C44 (Act v- ot 1861)- 11 8ha11 be the duty ot everv officer in
charge of a police-station to keep a general diary in such form as shall,
from time to time, be prescribed by the Local Government, and to re
cord therein all complaints and charges preferred, the names of all per
sons arrested, the names of the complainants, the offences charged against
them, the weapons or property that shall have been taken from their
possession or otherwise, and the names of the witnesses who shall have
been examined.
The Magistrate of the district shall be at liberty to call for and
inspect such diary.]
t£n with'K [182 (p- C0- Whoever gives to any public servant any informa-
TOrvantSo'ui0 t'0n wn'cn ne knows or believes to be false, intending thereby to cause,
his lawful pow- or knowing it to be likely that he will thereby cause, such public servant—
er to the in-
person']*"01'18' (a) *° do or om't anything which such public servant ought
not to do or omit if the true state of facts respecting which
such information is given were known by him, or
(b) to use the lawful power of such public servant to the in
jury or annoyance of any person,
shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to one
thousand rupees, or both.
Illustrations.
(a) A informs a Magistrate that Z, a police-officer, subordinate
to such Magistrate, has been guilty of neglect of duty or misconduct,
S. 154.J Powers of Police. » 7.3
knowing such information to be false, and knowing it to bo likely that
the information will cause the Magistrate to dismiss A. A has committed
the offence defined in this section.
(6) A falsely informs a public servant that Z has contraband
salt in a secret place, knowing such information to be false, and know
ing that it is likely that the consequence of the information will be a
search of Z's premises, attended with annoyance to Z. A has commit
ted the offence defined in this section.
(r) A falsely informs a policeman that he has been assaulted and
robbed in the neighbourhood of a particular village. He does not men
tion the name of any person as one of his assailants, but knows it to be
likely that, in consequence of this information, the police will make en
quiries and institute searches in the village to the annoyance of the
villagers or some of them. A has committed an offence under this sec
tion.]
[211 (P. C). Whoever, with intent to cause injury to any per- [F»Ue charge of
son, institutes, or causes to be instituted, any criminal proceeding against with^ntoiit* to
that person, or falsely charges any person with having committed an injure-]
offence, knowing that there is no just or lawful ground for such proceed
ing or charge against that person, shall be punished with imprisonment
of either description for a term which may extend to two years, or with
fine or with both ;
and, if such criminal proceeding be instituted on a false charge of
an offence punishable with death, transportation for life, or imprisonment
for seven years or upwards, shall be punishable with imprisonment of
either description for a term which may extend to seven years, and shall
also be liable to fine.]
Statements of witnesses recorded by a police-officer while making an in- Statements of
vestigation under section 161 of the Criminal Procedure Code, 1882, form no ^"b^VoMco-
portion of the police diaries referred to in section 172, and an accused person officers inventi
on his trial has a right to call for and inspect such statements and cross g}^"* "xTv
examine the witnesses thereon. Bihao Khan v. The Queen-Empress, I. L. It., nf °{|,e code
16Ca1., 610 ri88'.»). Riihtofnccuwd
. to call for and
The fact that an offence alleged to have been committed has been com- inspect police
pounded is no conclusive answer to a charge made against the prosecutor un- diarie^
der section 211 of the Penal Code. A laid a charge against M for wrongful Fa!»e charge-
confinement. The police reported the case as a false one, and A. not appear- ^"^'"'{J"^'0
ing to prove his complaint, the District Magistrate ordered him to be prosecu- charge of accus-
ted under section 211 of the Penal Code, and made over the case to a Deputy ed upon plea
Magistrate. Upon the hearing of such charge, A pleaded that he had com- charKe^'having
pounded the original charge laid by him against M, and that therefore the been compoun-
charge against him under section 211 could not lie. The Deputy Magistrate aod-
without hearing any evidence dismissed the case. Held, that the course so
taken was illegal, as such plea was no conclusive answer to a charge under
section 211. Queen-Empress v. Alar All, I. L. R., 11 Cal., 79 (1884).
R made a complaint of theft against S to the police. The police False charge to
referred the case as false to the Magistrate. The Magistrate summoned R {^bTsessiona
and examined him, but gave him no opportunity to prove the charge by call- Court—Oppor-
ing the witnesses
be struck named
off the rile by him.
and gave The Magistrate
sanction to prosecutethen
R. ordered the case to ^"^y
R was subsequently roveThe
truth PIof8 the
brought before the same Magistrate and committed to the Sessions, and con- charge before
victod by the Sessions Court under section 211 of the Penal Code. Held, that "vtn. "0t
»74 Powers of Police. [Chap. XIV.
although R hid no opportunity of proving his case before ho was himself trie),
the conviction was not illegal, Ramasami v. The Queen-Empress, I. L. R.. 7
Mad., 292 (1884).
PoliceTnv^tiT Section 1G1 of the Code of Criminal Procedure, 1882, makes it obligatory
Ration—Judi- on a person examineil in the course of a police investigation under Chapter
cial proceed- XIV to answer truly all questions put to him (other than questions the
answers to which would have a tendency to expose him to a criminal charge,
or to a penalty or forfeiture), and such person, if he knowingly answers
falsely, commits the offence of giving false evidence in a stage of a judicial
proceeding under section IS'3 of the Penal Code. Queen- Empress v. Parsh-
ram Ray Sing, I. L. R., 8 Bom., 21G (1883).
Cliar>«> mitdoon A commitment for trial under the provisions of section 211 of the Penal
thatrtc«Lf°w™ ^0('fc ^1,r knowingly instituting a false charge with intent to injure the per-
falm-Cbaixe' sons accused is not illegal merely hecause the complaint which the accused
of giving raw made has not been judicially enquired into, hut is based on the report of the
information. pojjoe that th(J cage wug a felge 0M Thf, E ^ v Salj], R j L g g
Cal , 582 (1881).
Evidence—Me- A prisoner on his trial is not entitled to insist that a memorandum made
morancluniniade by a police-officer under the provisions of section 119 of the Code of Criminal
—R<^rv!ininKCer Procedure, 1872, shall, in the course of the examination of such officer, be refcr-
witness's memo- red to by the latter for the purpose of refreshing his memory. The Empress
tYon outness. v" KtUi Churn Chunari, I. L. If., 8 Cal., 154 (1881).
Police diaries— A prisoner has no right to insist that a police diary, if not in Court, shall
Ecfreshini? me- be sent for, or, if it be in Court, that it be referred to for the purpose of re-
""'r>' freshing the memory of a police-officer under examination. Per Wilson, J.—A
witness cannot be compelled to refresh his memory from any document, unless
the document is either in the possession of the party who desires to put it to
the witness, or is, at least, such as he can insist on having produced. In re
Kali Churn Chunari, 10 Cal. L It., 51 (1881).
False cliarirc— A charge laid against certain persons before the police having been re-
Complaint bo- ported
»» • L falseorrbytbe
tore Magistrate Magistrate ii that
i- »body, the
■ » who person
r . iwho
i directed c made• the charge
»• complained
i investigation, hi i to was
the
—Investigation district a fresh ihe charge
of chance made again reported false. The complainant thereupon filed a petition in which he
PoMco reports^- alleged that the second investigation had not been properly conducted, and
Procedure. asked that further evidence might be taken by a specific officer. No further
investigation having taken place, the complainant was ordered to be prosecuted
under section 211 of the Penal Code, and on trial was convicted and sentenced.
On appeal to the High Court, it was held, that the conviction was illegal, inas
much as an opportunity had not been afforded to the accused of producing all
his evidence in support of the charge made by him. Per MACT.KA.N, J.— The
proper principle which should guide a Magistrate is, that if no complaint is
made before him after a reasonable time has elapsed from the conclusion of a
police inquiry, he would be justified in proceeding against, a person wdio had
made a complaint to the police which has been found to be false, but if a
complaint is made, that complaint must be dealt with judicially. It is unfair
even then to proceed against the complainant without hearing any witnesses
whom he may wish to examine. Per MlTTER, J.—Although a Magistrate has
power under section 147 of the Code to dismiss a complaint without examining
witnesses, yet in such a case no sanction for prosecution, under section 211 of
the Penal Code, should be granted. In re Chukradar Potti, 8 Cal L. R., 281)
(1881).
False charge be- Where a charge made to the police is found by that body to be false,
(SnipTaintlre- there being no complaint made to the Magistrate, it is not necessary, before a
fore Magistrate prosecution under section 211 of the Penal Code can legally be instituted
lproIJodimi>°rtS against the person making the charge, that the charge should be first judicially
investigated. The Empress v. Salik- Ray, 8 Cal. L R., 255 (1881).
s. 154] Powers of Folicc. '75
Before a per/on can be put up m his trial for making a false charge Prosecution Tor
un ler section 211 of the Penal Cole, he must bo allowed an opportunity of makinâ false
proving the truth of the complaint made by him, and such an opportunity timlfy to\ii'cuI-
slioull 1).' afforded to him, if ho desires to take advantage of it, not before ed to prove the
th° Police, but b 'fore the Magistrate. The Gocernment v. Karimda I, I. L. R., truth 01 chjrXB-
G Cal., 49d (1880).
D charge 1 certain persons before a police-officer with theft. Such charge False charge-
was brought by the police to the notice of the Magistrate having jurisdiction. Contempt,
who direjte 1 the police to investigate into the truth of such charge. Having
ascertained that such charge was false, such Magistrate took proceedings
against li on a charge of making a false charge of an offence—an offence
punishable under section 211 of the Penal Code, and convicted him of that
offence. /f4d, that as such false charge was not preferred by B before such
Magistrate, the offence of making it was not a contempt of such Magistrate's
authority, and the provisons of sections 408 and 473 of the Code of Criminal
Procedure, 1872, were inapplicable, anil such Magistrate was not precluded
from trying li himself, nor was his sanction or that of so.ne superior Court
necessary for B's trial by another officer. Enpress of India v. Baldeo, 1. L.
R., 3 All., 322 (1880).
There is nothing in section 211 of the Penal Code which limits the penalty False chaw—
there iuposel to cases in which attempts have been made to substantiate Cha r«c laid^bo-
false charges in a Court of Justice. A false charge made before the police is ce™. ^ 'C°
therefore punishable under this section. Ashrqf Ali v. The Empress, I. L. R
5 Cal., 281 (187'J).
An offence under section 211 of the Penal Code includes an offence under Preliminary on-
section 182 ; it is therefore open to a Magistrate to proceed under either quiry.
section, although, in cases of a more serious nature, it may be that the proper
course is to proceed under section 211. BhokUram v. Heera Kolita, I. L. R.,
5 Cal , 184 (1879).
Where a charge, made against a peshkar and the police, was dismissed Dismissal of
upon the statements of the persons examined by the police, and without com- complaint -Pro-
plainant's witnesses being examined, the order of dismissal was held to be 8CCU lon'
illegal. It was also held to be illegal for the Magistrate to sanction a prose
cution under the Penal Co le, section 211, against the complainant, without
giving him an opportunity to prove his charge. Syed Nissar I[ossein v.
ltamgolam Sing, 25 W. R., 10 (1870).
The words " appellate judgment of acquittal" in the Code of Criminal complaint
Proae lure, 1872, section 272, were meant to include all judgments of an at policc-sta-
Appellate Court by which a conviction is set aside. A complaint made at a *;£n'7Pr0BeCU"
police-station is not made before any Civil or Criminal Court, and, if it proves
false, prosecution for it does not require the sanction of any Court under
section 408 of the Code. The Gocernment of Bengal, v. Gohool Chunder
ChoicJhri/, 24 W. R., 41 (1875).
Section 119 of the Code of Criminal Procedure, 1872, not making it obli- stnton,onis
gatory upon a police-officer to reduce to writing any statements made to hint made to thejw
during an investigation, neither that section, nor section 91 of the Evidence llce-
Act, renders oral evidence of such statements inadmissible. If the statements
be actually reduced to writing, the writing itself cannot be treated as part of
the record or used as evidence, but may be used for the purpose of refreshing
memory under section 159 of the Evidence Act, consequently the person
making the statements may properly be questioned about them ; and, with a
view to impeach his credit, the police-officer himself, or any other person in
whose hearing the statements were made, can be examined on the point under
section 155 of the Evidence Act. Reg. v. UUamchand Knpurchand, 11 Bom.
II. C , 120 (1874 .
176 Powers of Police. [Chap. XIV.
nnn oospiiubie11 155. (I) When information is given t > an officer in charge
case*. of a police-station of the commission within the limits of such
station of a non-cognizable offence, he shall enter in a book to be
kept as aforesaid the substance of such information and refer the
informant to the Magistrate.
investigation (2) No police-officer shall investigate a non-cognizable case
BWe'caSefc8"11" without the order of a Magistrate of the tirst or second-class having
power to try such case or commit the same for trial, or of a Pre-
s dency Magistrate.
(3) Any police-officer receiving such order may exercise the
sam3 powers in respect of the investigation (except the power to
arrest without warrant) as an officer in charge of a police-station
may exercise in a cognizable case.
Magistrate's Section 155 of the Code of Criminal Procedure, 1882, deals only with the
alSinTOstlga- Power8 °f the police-officers. It confers no power or authority on Magistrate
tion by the po to direct a local investigation by the police, or call for a police report It is
of06 miOIoSerIce n0' a Pr0Per course for a Magistrate, when a complaint is made before him of
cognizable by a an offence of which he can take cognizance, to refer the complaint to a police-
Magistrate, officer. He is bound to receive the complaint, and after examining the com
plainant to proceed according to law. In re Jaiikidas Guru Sitaram, I. L. K.,
12 Bom., 161 (1887).
Complaint re- A Magistrate upon complaint made issued process and examined wit-
ferred to the nesses in support of the complaint ceased to exercise jurisdiction. His sue -
£y am/report"'" cessor on taking up the case referred the complaint to the police for enquiry
and report, and upon receipt of the report discharged the accused. Held, that
this procedure was illegal. A reference under section 202 of the Code of
Criminal Procedure, 1882, cannot bo made after evidence has been taken for
the co:nplainant and process issued. Soda Gopacharyar v. Ragavacharyar,
I. L. R., 9 Mad., 282 (1880).
Miners' ^"*Aot Depositions of witnesses, or confessions taken at a police investigation
(XVIII of 187») are not, as far as their subject-matter is concerned, any more the property of
Tenston^PoHee
papers!' ° 'C° *'ie P°''ce than
misconduct the property
of any of the prisoners,
kind in making anddocuments
use of such a pleaderfor
is not guilty of
the benefit of
his client when delivered to him by the client, however improperly the client
may have become possessed of such documents, provided the pleader is neither
party nor privy to their obtaiunient. The power of interim suspension given
under section 14 (cl. 5) of Act XVIII of 1879, when read with section 40 of
the same Act, can only be exercised after the pleader has been heard in his
defence and pending the investigation and orders of the High Court. In re
Kristo Lall Nag, I. L. R, 10 Cal., 256 (1883).
Dismissal of A Magistrate cannot dismiss a complaint without first examining the
Ken'u'iries0" complainant.
ice enquiries. gnapjer xjy ofAnthe enquiry by the police
Code of Criminal into 1861,
Procedure, complainant's fallingbyunder
is not warranted law.
Queen v. Harrak Chand Noivlaka, 8 \V. R., 12 (1867).
investigation 156. (/) Any officer in charge of a police-st ition may,
cases!0*'""11'16 without the order of a Magistrate, investigate any cognizable case
which a Court hiving jurisdiction over the local area within the
limits of such station would have power to inquire into or try
under the provisions of Chapter XV relating to the place of inquiry
or trial.
Ss. 155-157-] Powers of Police. 177
(2) No proceeding of a police-officer in any such case shall at

any stage be called in question on the ground that the case was ono
which such officer was not empowered under this section to inves
tigate.
(3) Any Magistrate empowered under section 190 may order
such an investigation as above mentioned.
Section 101 of the Code of Criminal Procedure, 18*2, makes it obligatory Police inventi
on a person examined in the course of a police investigation under Chapter Kation—Judicial
XIV to answer truly all questions put to him (other than questions the answers ProcoedlI"t-
to which would have a tendency to expose him to a criminal charge, or to a
penalty or forfeiture), and such person if he knowingly answers falsely, com
mits the offence of giving false evidence in the stage of a judicial proceeding
under section 193 of the Penal Code. Queen-Empress v. Parshram Rmi Sinn,
I. L. B., 8 Bom., 216 (1883).
157. (/) If, from information received or otherwise, an Procedure where
officer in charge of a police-station hns reason to susp-ct the com- cc*'u^tedrten
mission of an offence which he is empowered under section 156 to
investigate, he shall forthwith send a report of the same to a Ma
gistrate empowered to take cognizance of such offence upon a
police-report, and sh ill proceed in person, or shall depute one of
his subordinate officers to proceed, to the spot to investigate the
facts and circumstances of the case, and to take such measures as
may be necessary for the discovery and arrest of the offender :
Provided as follows :—
(a) when any information as to the commission of any such where local in-
offence is given against any person by name and the case plSî'th!1'""
is not of a serious nature, the officer in charge of a police-
station need not proceed in person or depute a subordniate
officer to make an investigation on the spot ;
(/<) if it appear to the officer in charge of a police-station that Where poiieo-
there is no sufficient ground for entering on an investi- JccrimsumSt
gation, he shall not investigate the case. n™aUonfori,,VCT'
(2) In each of the cases mentioned in clauses («) and (A) of
the proviso to sub-section (/), the officer in charge of the police-
station shall state in his said report his reasons for not fully com
plying with the requirements of that sub-section.
Held by the Full Bench (Sr/nRAMANiA AYYAR, J., dissentient).—Reports Occurrence re
made by a police-officer in compliance with sections 157 and 168 of the Criminal j^t^St10'
Procedure Code, 1882, are not public documents within the meaning of section 0f accused to
74 of the Evidence Act, and consequently an accused person is not entitled, copies of before
before trial, to have copies of such reports. Held by Collins, J., and Benson, pêduTcode.
J —The same rule applies to reports made by a police-officer in compliance sections 1.17, 10s.
with section 173 of the Code. Jfeld, by SiiEriiARD and Sudramania Ayyar, JJ*^J*$jL
j.j. Keports made by a police-officer in compliance with section 173 of the i„dinn Kvidenco
Code are public documents within the meaning of section 74 of the Evidence ASk^JJ^JJ^
Act, and consequently an accused person being a person interested in such do- have copies -
cuments, is entitled by virtue of section 76 of the Evidence Act to have copies Indian Evidence
cf such reports before trial. Queen-Empress v. Arumugum, I. L. It., 20 Mad., Act' *sctlon 76>
189 (1896) ^
i78 Powers of Police. [Chap. XIV.
wcUon*67nhow 158. (-0 Every report sent to a Magistrate under section

■ubmitted. 157 shall, if the Local Government so directs, be submitted through
such superior officer of police as the Local Government, by gene
ral or special order, appoints in that behalf.
(2) Such superior officer may give such instructions to the

officer in charge of the police station as he thinks fit, and shall,
after recording such instructions on such report transmit the same
without delay to the Magistrate.
ki°vesti tti(5i°or 159. Such Magistrate on receiving such report may di-
preiiminary in- rect an investigation or, if he thinks fit, at once proceed, or depute
q ry' any Magistrate subordinate to him to proceed, to hold a prelimi
nary inquiry into, or otherwise to dispose of, the case in manner
provided in this Code.
Procedure— 1° a ca8e m which a Deputy Magistrate took an active part in the capture
Judire-Witness. of parties charged with having heen members of an unlawful assembly,
parties whom he himself tried on that charge,—it was held that he was bound
to state to the accused, so far as he could, what were the facts he himself
observed, and to which he himself could bear testimony ; and the prisoner in
such situation had a right, if he thought it desirable, to cross-examine the
Judge, whose evidence should be recorded, and form part of the record in the
case. The proper course, however, for the Deputy Magistrate to have taken
in this case would have been to decline to try the case, and to ask that it
should be undertaken by some other Judge. In re Ihtrro Chunder Paul, 20
W. R., 76 (1873).
Police-officer's 160. Any police-officer making an investigation under this
quire attcn-1* chapter may, by order in writing, require the attendance before
ne»ses.of himself of any person being within the limits of his own or any
adjoining station who, from the information given or otherwise,
appears to be acquainted with the circumstances of the case ; and
such person shall attend as so required.
[Preventing «ci- [173 (P. C). Whoever iii any manner intentionally prevents the
vice of sum- serving on himself, or on any other persou, of any summons, notice, or
raons or other ° ,. from
„ "... servant.in
legally competent, as sucnx. puo-
u
proceeding, or other proceeding any public
ficl^nthereofi "c servant. to issue such summons, notice, or order,
or intentionally prevents the lawful affixing to any place of any such
summons, notice, or order,
or intentionally removes any such summons, notice, or order from
any place to which it is lawfully affixed,
or intentionally prevents the lawful making of any proclamation,
under the authority of any public servant legally competent, as such
public servant, to direct such proclamation to be made,
shall be punished with simple imprisonment for a term which may
rupees, or with both ;
S. 158-160.] Powers of Police. 179
or, if the summons, notice, or order, or proclamation is to attend in

person or by agent, or to produce a document in a Court of Justice,
with simple imprisonment for a term which may extend to s>ix months,
or witli fine which may extend to one thousand rupees, or with both.]
[174 (P. C). Whoever, being legally bound to attend in person 2£?"to?"3!ii,.
or by an agent at a certain place and time in obedience to a summons, ence to an order
notice, order, or proclamation proceeding from any public servant legally |^jmbUc *er*
competent, as such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs from
the place where he is bound to attend before the time at which it is lawful
for him to depart,
extend to one month, or witli fine which may extend to five hundred
rupees, or with both ;
or, if the summons, notice, order, or proclamation is to attend in
person or by agent in a Court of Justice, witli simple imprisonment for
a term which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.
Illustrations.
((/) A, being legally bound to appear before the Supremo Court
at Calcutta in obedience to a subpoena issuing from that Court, inten
section.
(A) A, being legally bound to appear before a Zillah Judge as a
witness in obedience to a summons issued by that Zillah Judge, inten
tionally omits to appear. A has committed the offence in this section.]
Where a District Magistrate issued a warrant for the arrest anil produc- Warrant of ar-
tiitn oE a witness for the purpose of giving evidence at an investigation held nsat-Illegal ia-
by the polite, and in attempting to execute such warrant the police arrested the »»eof warrant —
wrong person and were assaulted in the attempt : Held, that apart from the amult -•
fact that the attempt to arrest was made on the wrong person, a District Ma- Investigation
gistrate has no authority to issue a warrant for the production of a witness at ,,y |l°1"'0"
an investigation by a police-officer ; hut only before his own Court under sec
tions 70, 81 of the Code of Criminal Procedure, 1882. Held, also, that as the
investigation was held by a police-officer under Chapter XIV of the Code, the
proper course was for the sub-inspector of police to require the attendance of
the witness under section 160, and on failure by her to comply with such or
der, prosecute her under section 174 of the Penal Code. Held, also, that the
accused were justified in their resistance, and that no offence, either under
section 143 or section 186 of the Penal Code, was committed, and that they
should he acquitted. Queen-Empress v. Jogendra Nath Mukerke, I. L. B„
24 Cal., 320 (1897).
As there is no provision in the Code of Criminal Procedure, 1882, authoris- Security bond
ing a police-officer to take a security bond for the production of any person JjJeer po'ioe"
before the police, such a bond is ab initio void, and a Magistrate has no power
to alter it and impose fresh obligations thereunder. In re Chandra Sekhar
Rai, I. L. B., 11 Cal., 77 (1884).
Police-officer- Section 160 of the Code of Criminal Procedure, 1882, which authorises a
Investigation- police-officer malting an investigarion under Chapter V of the Code to require
Summons to
answer com the attendance before himself of any person (within certain limits) who ap
plaint. pears to be acquainted with the circumstances of the case, does not empower
such officer to require the attendance of an accused person to answer the com
plaint made against him. Qtteen-Emprees v. Samincula Chetti, I. L. R., 7 Mad.,
274 (1883).
Examination
witnesses by ot ,1.1,161. (1) Any J rpolice-officer
11 making an investigation
1 , 1nnder
police. this cnaptJr may examine orally any person supposed to be ac
quainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer all qu ?stions relat
ing to such case put to him by such officer, other than questions
the answers to which would have a tendency to expose him to a
criminal charge or to a penalty or forfeiture.
[Giving false [191 (P. C). Whoever, being legally bound by an oath, or by
evidence.] any eXpresg provision 0f law, to state the truth, or being bound by law
to make a declaration upon any subject, makes any statement which is
false, and which he either knows or believes to be false, or does not be
lieve to be true, is said to give false evidence.
Explanation I.—A statement is within the meaning of this section
whether it is made verbally or otherwise.
Explanation II.—A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may be
guilty of giving false evidence by stating that he believes a thing which
he does not believe, as well as by stating ho knows a thing which he
does not know.
Illustration*.
(a) A, in support of a just claim which B has against Z for one
thousand rupees, falsely swears on a trial that he heard Z admit the
justice of b's claim. A has given false evidence.
(i) A, being bound by an oath to state the truth, states that he
believes a certain signature to be the handwriting of Z, when he doo3
not believe it to be the handwriting of Z. Here A states that which
he knows to be false, and, therefore, gives false evidence.
(c) A, knowing the general character of Z's handwriting, states
that he believes a certain signature to ba the handwriting of Z ; A in
good faith believing it to be so. Here A's statement is merely as to his
belief, and is true as to his belief, and therefore, although the signature
may not be the handwriting of Z, A has not given false evidence.
(d) A, being bound by an oath to state the truth, states that he
knows that Z was at a particular place on a particular day, not know
ing anything on the subject. A gives false evidence, whether Z was .
at that place on the day named or not.
(e) A, an interpreter, or translator, gives a certificate as a true
interpretation or translation of a statement or document which he is
S. 1 6 1.] Powers of Police.
bound by oath to interpret or translate truly, that which is not, and which
he does not believe to be, a true interpretation or translation. A has
given false evidence.]
A Sessions JJudge, although he has power in any particular cose which is £°hicte di"if
before hhn to senjnd for the police diaries connected with the cose, if he thinks diaries should
it necessary to peruse them, has no authority to issue a general order that in contain-statc-
every case committed for trial to the Court of Session, and in every criminal ™*(jer "Section
appeal, the police diaries shall be submitted to the Court simultaneously with 161 of Act X of
the Magistrate's record of the case. Such an order is illegal. In no cose is Jugh^tatemcn'a
an accused person entitled as of right to a copy of any statement recorded by „,ay form part
a police-officer in the special diary prepared under the authority of section special
172 of- the Code of Criminal Procedure, 1882. The special diary may be d'"y*
used by the Court to assist it in the inquiry or trial by suggesting means of
further elucidating points which need clearing up and which are material for
the purpose of doing justice between the Crown and the accused ; but entries
in the special diary cannot by themselves be taken as evidence of any date,
fact or statement therein contained. The special diary may also be used by
the Court for the purpose of contradicting the police-officer who made it,
and the special diary may be used by the police-officer who made it, and by
no witness other than such officer, for the purpose of refreshing his memory.
If the special diary is used by the Court to contradict the police-officer who
made it, or by the police-officer who made it to refresh his memory, the
accused person or his agent has a right to see that portion of the diary which
lias been referred to for either of these purposes, that is to say, the accused
person or his agent is entitled to see the particular entry which has been re
ferred to and so much of the diary as in the opinion of the Court is necessary
in that particular matter as to the full understanding of the particular entry
so used, but no more. So held by the Full Bench. Per Edge, C. J., Knox,
Blair, and Burkitt, JJ.—A police-officer investigating a case may lawfully
rerluce into writing in the special diary the full and unabridged statement
made to him by a person whom he is examining or has examined under sec
tion 161 of the Code of Criminal Procedure, 1882, and if he does so, his
record of such statement is part of the special diary, and is just as much
privileged as any other entry in the diary. All statements made under sec
tion 161 of the Code to a police-officer and reduced into writing by him
should be reduced into writing in the special diary and not elsewhere. Per
Banerji, J., and Airman, J.—Statements recorded under section 161 of the
Code by a police-officer making an investigation were not intended by the Legis
lature to be entered in the special diary, and if they are so entered do not
form an integral part of the diary and are not privileged, but the accus
ed person or his agent is entitled to sec them. A mere summary, how
ever, of facts ascertained by an investigating officer from persons exa
mined by him, not being a report of their actual statements, may properly
find a place in the special diary. Queen-Empress v. Alannu, I. L. B., 19
All., 390 (1897).
At the beginning of a trial in the Court of a Presidency Magistrate, an Police charge;
application was made, on behalf of the accused, for a copy of the police •lloet-
charge-sheet which contained the whole of the prosecution evidence as set
forth by the police, and extract from, if not copies of, the police diary. The
application was rejected by the Magistrate. Held, that the High Court should
not in revision interfere with the order of the Magistrate. Queen-Empress
v. Venkatarutaani Pantulu, I. L. U., 19 Mad., 14 (1895).
Though, speaking generally, statements, other than dying declarations, Use at trial in
made to a police-officer in the course of an investigation under Chapter XIV" ^""jltJJtenwnti'
of the Code of Criminal Procedure, 1882, may be used at the trial in favor of Jnaile to police-
an accused person, such statements can only be so used when they are legally officer investtao-
brought as evidence before the Court, that is to say, a witness haviug been deuce?"8- "
cross-examined as to a statement, it may be shown by the evidence of the

police-officer that he did make a statement favorable to the accused which the
witness denies having made ; and if the statement was at the time reduced
into writing by the police-officer he would be allowed to refresh his memory
by referring to it ; but the written statement itself, when the statement has
been reduced into writing (according to the section it must not be signed by
the person making it) cannot be used as direct evidence of what was stated
by the witness to the police-officer. Such statements as above described
made as to the presence of an accused person at the commission of an offence
and not being statements to which the second paragraph of section 102 of the
Code applies, cannot legally be used as evidence "gainst the accused. Queen-
Empress v. Taj Khan, I. L. R., 17 All., 57 (18H4).
Charee—Alter- Where a person has made two contradictory statements, one to a police-
native chaiHc— officer making an investigation under Chapter XIV of the Code of Criminal
statement's?'*' Procedure, 1882, and the other to a Magistrate holding a preliminary inquiry,
lie cannot be charged, and still less convicted, on an alternative charge. In
such a case, if there is no other evidence at the trial but the contradictory
statements made by the accused, separate charges cannot be framed. Queen-
Empress v. Mugapa Bin Niuyapa, I. L. B., 18 Bom., 377 (1893).
Defamation— A statement made in answer to a question put by a police-officer under the
Privilege of wit- Criminal Procedure Code, 1882, section 161, in the course of investigation
nt1^hvVnaHce made by him is privileged, and cannot be made the foundation of a charge of
ptawm » i» e«. defamation> Queen.Empre8S v. Qovinda Pillai, I. L. E., 10 Mnd.,'235 (1892).
False evidence It is not necessary that the statement of a witness recorded under section
-Statement^ 101 of the Code of Criminal Procedure, 1882, should be elicited and recorded
polipe-onleer^n- >n the form of alternate question and answer. It is sufficient if such state-
vestiimtinir a ment is substantially an answer to one or more questions addressed to the
rworf?n?esuch witness before the statement is made. The provisions of sections 191 and 193
statements, i of the Penal Code do apply to the case of false statements made under section
101 of the Code of Criminal Procedure, 1882. It is not illegal, though un
necessary, for a police-officer recording a statement under section 161 of the
Code, to obtain the signatures of persons present atl ithe time to authenticate
his record of such statement. Queen-Empress v.\iBhagimntia,l. L. I!., 15
AIL, 11 (1892).
Statements of Statements of witnesses recorded by a police-officer while making an iuves-
witnesses re- tigation under section 161 of the Criminal Procedure Code, 1882, form no
fi°?offlcers ?n- Port'011 °f tue P0''1'0 diaries referred to in section 172, and an accused person
vestigntini! nn- on his trial has a right to call for and inspect such statements and eross-cxa-
vTr Chapter mjne ti,e witnesses thereon. Bikao Khan v. The Queen-Empress, I. L. R.,
Code-ttUt of 10 Col., 610 (1889).
accused to call
—Police diaries' ^n accu8et' wfts charged with giving false" evidence upon an alternative
' charge, one statement having been made to a police-officer investigating a
Fulse evidence case of arson, and the other having been made when he was examined as a
dmrKf"-St:itc- witness before the Joint Magistrate when the case was being inquired into,
ment made to The two statements were contradictory, and no evidence was given to show
nvegU°arnr w»ich of them was false. It was not proved that the statement made to the
case. ,t& '"K police-officer was made in answer to questions put by him, and the only evi
dence given at the trial with regard to the inquiry upon which the police-
officer was engaged, was to the effect that an inquiry was being made <ibout the
burning of a house. The jury acquitted the accused, and the case was refer
red to the High Court by the Sessions Judge, who disagreed with the verdict of
acquittalj: Held, that the verdict was] right. Before a conviction in such a
case can be sustained, it must, having regard to the provisions of section 161
of the Criminal Procedure Code, 1882, be clearly proved by the.cvidence that
the statement made to the police-officer was a statement in answer to tjucstions
S. 1 6 1.] Powers of Police. 183
put to the accused by the investigating police-officer, and in the absence of

such evidence, even though the statements were proved to be false, a convic
tion could not be sustained. Held, further, that in such a case it is also
necessary for the prosecution to establish that the police-constable was making
an investigation under Chapter XIV of the Code. The Empress v. Baikanta
Bauri, I. L. R., 16 Cal., 349 (1889).
A statement taken down in the course of a police investigation by a Sanction—Po-
police-constable under section 161 of the Criminal Procedure Code, 1882, is jn°e"0u^d8err le£
not evidence at any stage of a judicial proceeding. A police-constable taking tion lei—Prose-
down a statement under section 161 of the Code is not a Judge, nor is the J11*'0" 'proving
place where he_ officiates a Court. His sanction is, therefore, not necessary a jSiee'-offlcer.0
under section 195 of the Code, to a prosecution for a false statement made to
him, whether the charge be framed singly or alternatively. Queen-Empress
v. Ismail Valacl Fataru, I. L. K., 11 Bom., 659 (1887).
A statement reduced to writing by a police-officer under section 162 of Statement taken
the Code of Criminal Procedure, 1882, cannot be used as evidence for the ?°rilj^. *
accused But though it is not evidence, the pohce-omcer, to whom it was under section
made, may use it to refresh his memory under section 159 of the Evidence l!i'-.":p',idoVc*";
Act (I of 1872), and may be cross-examined upon it by the party against 0Vl372.ce c
whom the testimony aided by it is given. The person making the statement
may also lie questioned about it ; and, with a view to impeach his credit, the
police-officer, or any other person in whose hearing the statement was
made, can be examined on the point under section 155 of the Evidence Act.
Queen-Empress v. Sitaram Vithal, I. L. R., 11 Bom., 657 (1887).
In order to sustain any conviction for giving false evidence upon an al- Falseevidence—
ternative charge when no evidence is offered to prove the falsity of eithfcr procedure »»™
statement, in particular, it must be clear that the two statements are contra- more than one
dictory. The law laid down by the Full Bench in the case of the Empress v. ^"""n'VaWn "
Kassim Khan has been altered by the provisions of section 161 of the Code given false evi-
of Criminal Procedure, 1882, and a witness who makes a false statement to a dence in the
police-officer in reply to a question which he is bound to answer would be JJJ™8 Procoed-
guilty of intentionally giving false evidence. When four persons were accus
ed of having given false evidence in the same proceeding, and the Sessions
Judge, while professing to try each uccusod separately, heard the evidence of
the witnesses only once,—Held, that this was substantially trying the four pri
soners together, and was an improper mode of procedure. Nathu Sheikh v.
The Queen-Empress, I. L. R., 10 Cal., 405 (1884).
Depositions of witnesses, or confessions taken at a police investigation, are Legal Practi-
not, as far as their subject-matter is concerned, any more the property of the t!°"reIr.,I' *9',..
police than the property of the prisoner, and a pleader is not guilty of mis- sus-
conduct of any kind in making use of such documents for the benefit of his pension—Police
client, when delivered to him by the client, however improperly the client papers,
may have become possessed of such documents, provided the pleader is nei
ther a party nor privy to their obtainment. The power of interim suspension
given under section 14 (cl. 5) of Act XVIII of 1879, when read with section
40 of the same Act, can only be exercisedjafter the pleader has been heard in
his defence and pending the investigation and orders of the High Court,
In re Rristo Lull Nag, I. L. R., 10 Cal., 256 (1883).
Section 161 of the Code of Criminal Procedure, 1882, makes it obligatory False evidence-
on a person examined in the course of a police investigation under Chapter gation-Judfcili
XIV to answer truly all questions put to him (other than questions the proceeding,
or to a penalty or forfeiture), and such person, if he knowingly answers false
ly, commits the offence of giving false evidence in a stage of a judicial proceed
ing under section 193 of the Penal Code. Queen-Empress v. Parshram Bay
Sing, I. L. R., 8 Bom., 216 (1883).
I S4 Powers of Folice. [Chap, XIV
Evidence—8tate- In giving evidence a police-officer may refresh his memory by referring

ments of wit- to documents in which he has, under section 119 of the Code of Criminal
licc-offlccr a Procedure, 1872, reduced into writing statements of persons examined by him
during an in- during an investigation, but the documents themselves cannot be used as
vestigation— ^ evidence, and a Judge should not read such documents to a jury in order to
inory—Medical point out discrepancies between the evidence and previous statements of the
witnesses, evi- witnesses. The evidence of a medical man who has seen, and has made a
nion6of Xpert's post-mortem examination of the corpse of the person touching whose death
how elicited- the inquiry is, is admissible. Firstly, to prove the nature of injuries which
Examining at ]le observed ; and, secondly, as evidence of the opinion of an expert as to the
nfeilica? witness manner in which those injuries were inflicted, and as to the cause of death. A
who has been medical man who has not seen the corpse is only in a position to give evidence
{'he MngUtrate— °^ '"s °P'ni°n tts an expert. The proper mode of eliciting such evidence is to
Pust-mortem ex- put to the witness hypothetically the facts which the evidence of the other
animation ro- witnesses attempts to prove, and to ask the witness's opinion on those facte.
901 s' Section 323 of the Code docs not in any way preclude a Judge at a Sessions
trial from calling and examining the medical witness who has been examined
before the Magistrate, and in every case which the deposition taken by the
Magistrate is essentially deficient or requires further elucidation, such witness
should be called and examined by the Sessions Judge. A medical man in
giving evidence may refresh his memory by referring to a report which he
h.is made of his post-mortem examination, but tho report itself cannot be treat
ed as evidence, and no facts can be taken therefrom. Roghuni Singh v. The
Empress, I. L. R., 9 Cal., 455 (1882).
'aUll!'uestt'18A"— Neither the words "shall answer all questions" in section 118 of the
'■Shali bu' bound Code of Criminal Procedure, 1872, nor the words " shall be bound to answer
to answer all all questions " in section 119 of the same Code, constitute " an express provi-
Xincd'3 ~El' sion of the law to state the truth " within the meaning of section 191 of the
' Penal Code. The Empress v. Kassim Khan, I. L. B., 7 Cal., 121 (1881).
Evidence—Al- A charge of giving falso evidence, under section 193 of tho Penal Code,
feniativo charge cannot be sustained in respect of a statement made to a police-officer engaged
before "police— in making an investigation under the provisions of the Code of Criminal Pro-
Obligation to cedure, 1872. Sections 118 und 119 of the latter Code impose no legal obliga-
?>»i£i1}H 'ru'.ll— tion .on the rpersons
Police mvestiga- 0 n i texamined thereunder to speak the truth. Empress v.
n qaa/iooi\
tion. Kassim Khan, 8 Cal. L. R., 300 (1881).
False evidence Persons giving false answers to questions put by a police-officer conduct-
given before a ing an inquiry preliminary to a proceeding before a Court of Justice may be
immirv convicted of giving false evidence under sections 191 and 193 of the Penal
miAar/.' Code. In re Juggernath Sahai, 8 Cal. L. R., 236 (1881).
False evidence Where the accused was charged under section 193 of the Penal Code with
poli"cePeCtOT 01 '1!iving given false evidence, in that ho denied having made certain state
ments which ho was alleged to have made to the inspector of police, that offi
cer was examined, and merely put in two documents containing the statements
alleged as the records of what had taken place. Held, that these documents
being inadmissible in evidence under section 119 of the Code of Criminal Pro
cedure, 1872, evidence ought to have been given as to what was actually
stated by the accused to the inspector of police. In re Sheikh Dabu, 6 Cal. L.
R., 47 (1880).
The Evidence Section 119 of the Code of Criminal Procedure, 1872, not m iking it obli-
Act—State- gatory upon a police-officer to reduce to writing any statements made to him
the"'9 lice*10 10 during an investigation, neither that section, nor section 91 of the Evidence Act,
' renders oral evidence of such statements inadmissible. If the statements be
actually reduced to writing, the writing itself cannot be treated as part of the
record or used as evidence, but may be used for the purpose of refreslu'ng me
mory under section 159 of the Evidence Act, consequently, the person making
•S, 162.] Fowers of Police. 185
the statements may properly be questioned about them ; and, with a view to
■impeach his credit, the police-officer himself, or any other person in whose
hearing the statements were made, can be examined on the point under section
155 of the Evidence Act. Reg. v. Ullamchand Kapurchand, 11 Bom. II.
C, 120 (1874).
In a case tried by jury, the High Court has no power to go into the facts Hinh Court—
of the case in order to see whether or not the conviction was right, that stand- Juri"'
ing entirely upon the verdict of the jury. The Court has only to consider the
facts, in order to see whether the Judge has done his duty in laying the ouse
before the jury for their consideration. Points out how the Sessions Judge's
summing up to the jury should be dealt with by the High Court, first as re
gards the law, and then as regards the facts. The Queen v. Nim Cliand
Mooherjee, 20 \V. R., 41 (1873).
162. (/) No statement made by any person to a police- statements to
officer in the course of an investigation under this chapter shall, J^ncd'or «d- *
if taken down in writing, be signed by the person making it, nor Sence? °V1"
shall such writing be used as evidence :
Provided that, when any witness is called for the prosecution
whose statement has been taken down in writing as aforesaid, the
Court shall, on the request of the accused, refer to such writing and
may then, if the Court thinks it expedient in the interests of justice,
direct that the accused be furnished with a c apy thereof : and such
'statement may be used to impeach the credit of such witness in
manner provided by the Indian Evidence Act, * 1872.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of section 32, clause (/),
of the Indian Evidence Act, * 1872.
[25 (Act I of 1872). No confession made to a police-officer shall ^"c^mAsr0
be proved as against a person accused of any offence.] not to be'prov.
od.]
[26 (Act I of 1872). No confession made by any person whilst he [Ccniesrion by
is in the custody of a police-officer, unless it be made in the immediate "ce"scjjKj"lh(j}c
presence of a Magistrate, shall be proved as against such person.] pdk'enoUo be
proved against
[27 (Act I of 1872). Provided that, when any fact is deposed to hira-]
as discovered in consequence of information received from a person ac- [How much of
cused of any offence, in the custody of a police-officer, so much of such "ciy™ from *t-
information, whether it amounts to a confession or not, as relates dis- cused niuy bo
tinctly to the fact thereby discovered, may be proved.]
[32 (1) (Act I of 1872). When the statement is made by a person {o^Sit^tate*
as to the cause of his death, or as to any of the circumstances of the death.]
transaction which resulted in his death, in cases in which the cause of
that person's death conies into question—
such statements are relevant whether the person who made them
was or was not, at the time when they were made, under expectation of
death, and whatever may be the nature of the proceeding in which the
cause of his death comes into question.]
Act No, I ol 1872.
1 86 Powers of Police. [Chap. XIV.
[•rediTof'wft [166 (Act I of 1872). The credit of a witness may be impeached

IleM.] " in the following ways by the adverse party, or with the consent of the
Court, by the party who calls him :—
(1). By the evidence of persons who testify that they, from their
knowledge of the witness, believe him to be unworthy of credit ;
(2) . By proof that the witness has been bribed, or has accepted
the offer of a bribe, or has received any other corrupt inducement to give
his evidence ;
(8). By proof of former statements inconsistent with any part of
his evidence which is liable to be contradicted ;
(4). When a man is prosecuted for rape or an attempt to ravish,
it may be shown that the prosecutrix was of generally immoral character.
Explanation.—A witness declaring another witness to be unworthy
of credit may not, upon his examination-in-chief, give reasons for his
belief ; but he may be asked his reasons in cross-examination, and the
answers which he gives cannot be contradicted, though, if they are false,
he may afterwards be charged with giving false evidence.
Illustrations.
(«). A sues B for the price of goods sold and delivered to Bi
C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said
that he had not delivered the goods to B.
The evidence is admissible.
{ft). A is indicted for the murder of B.
C says that B, when dying, declared that A had given B the
wound of which he died.
Evidence is offered to show that, on a previous occasion, C said
that the wound was not given by A or in his presence.
The evidence is admissible.]
Police diaries— A Sessions Judge, although lie has power in any particular case which is
Want police din- before him to send for the police diaries connected with the case, if he
triii-suito™"" thinks it necessary to peruse them, bus no authority to issue a general order
menla recorded that in every case committed for trial to the Court of Session, and in every
ifiido7 Actls' o'f criminal appeal, the police diaries shall be submitted to the Court simulta-
ldftt—Whether neously with the Magistrate's record of the case. Such an order is illegal,
such statement « \n n0 ease jN an accused person entitled as of right to a copy of any statement
"lîaTdiri-y.' °' recorded by a police-officer in the special diary prepared under the authority
of section 172 of the Code of Criminal Procedure, 1882. The special diary
may be used by the Court to assist it in the inquiry or trial by suggesting
means of further elucidating points which need clearing up and which are
material for the purpose of doing justice between the Crown and the accused ;
but entries in the special diary cannot by themselves be taken as evidence of
any date, fact or statement therein contained. The special diary may also be
used by the Court for the purpose of contradicting the police-officer who made
it, and the special diary may be used by the police-officer who made it, and by
no witness other than such officer, for the purpose of refreshing his memory.
If the special diary is used by the Court to contradict the police-officers who
S. 162.] Powers of Police. 187
made it, or l>y the police-officer who made it to refresh his memory, the ac
cused person or his agent has a right to see that portion of the diary which
lias been referred to for either of these purposes, that is to say, the accused
person or his agent is entitled to see the particular entry which has been refer
red to, and so much of the diary as, in the opinion of the Court, is necessary in
that particular matter as to the full understanding of the particular entry so
used, but no more. So held by the Full Bench. Per Edge, C. J.t Kxox, Blaib,
and Burkitt, JJ.—A police-officer investigating a case may lawfully reduce
into writing in the special diary the full and unabridged statement made to
him by a person whom he is examining or has examined under section 161 of
the Code of Criminal Procedure, 1882, and if he does so, his record of such
statement is part of the special diary and is just as much privileged as any
other entry in the diary. All statements made under section 161 of the Code
to a police-officer and reduced into writing by him should be reduced into
writing in the special diary and not elsewhere. Per Baxeiuj, J., and Aikman,
J.- Statements recorded under section 161 of the Code-by a police-officer
making an investigation were not intended by the Legislature to be entered in
the special diary, and if they are so entered, do not form an integral part of
the diary and are not privileged, but the accused person or his agent is entitled to
see them. A mere summary, however, of facts ascertained by an investigat
ing officer from persons examined by him, not being a report of their actual
statements, may properly find a place in the special diary. Queen-Empress
v. Manuu, I. L. K., 19 All., 390 (1897).
Though, speaking generally, statements, other than dying declarations, Use at trial in
made to a police-officer in the course of an investigation under Chapter XIV of^'HTa^cments
of the Code of Criminal Procedure, 1882, may be used at the trial in favor of ninde to police-
an accused person, such statements can only bo so used when they are legally officer mvestira-
brought as evidence before the Court, that is to say, a witness having been dei*ct.tnse~Ev'*
cross-examined as to a statement, it may be shown by the evidence of the
police-officer that he did make a statement favorable to the accused, which
the witness denies having made ; and if the statement was at the time reduced
into writing by the police-officer he would be allowed to refresh his memory
by referring to it ; but the written statement itself, when the statement hus
been reduced into writing (according to the section it must not be signed by
the person making it ) cannot be used as direct evidence of what was stated
by the witness to t lie police-officer. Such statements as above described
made as to the presence of an accused person at the commission of an offence
and not being statements to which the second paragraph of section 162 of the
Code applies, cannot legally be used as evidence against the accused. Queen-
Empress v. Taj Khan, I. L. R., 17 All., 57 (1894).
A police-officer's notes of statements made to him in the course of an inves- Statement*
tigation and recorded by him under section 161 of the Code of Criminal Pro- m.2ê t0 .P01'™-
cedure, 1882, should, if used at all at the subsequent trial, be used only after emme ofan In-
proper proof of them and of the circumstances under which they were recorded, vestigntion—
and under the direct sanction of the presiding Judge. Copies of such notes Htntlnnelits
should not be given without question and as a matter of course to the at trial before
accused or his counsel. Queen- Empress v. Nasiruddhi, I. L. R„ 16 All.. 207 ?he . Court ot
/•1Qr>(\ Session—Prac-
(1894). tice.
The privilege given by section 172 of the Code of Criminal Procedure, 8tatement« ot
1882, does not extend to statements taken under section 161, but recorded in aii'^v^rwlicc-
the diary made under section 172. Sheru Sha v. The Queen-Empress, I. L. officers investi-
R.,' 20 Cal.,> 642 \(1893)./ Chapter XIV—
. Police diaries.
A statement made 111 answer to a question put by a police-officer under
Criminal Procedure Code, 1882,' section 161, in the course of investigation S''/'.'V1lUl0l,'— .
1 1 1• • •! 1 1 i1 1 ,1 1 i ,.• * 1 r r"vilexe of Wlt-
maue by him is privileged, and cannot be made the foundation or a charge of ncss—Inveati-
defauiutiou. Queen-Empress v. Godnda Pilhti, I. L. R., 16 Mail., 235 (1892). erai'on by police.
i88 Powers of Police. [Chap. XIV.
Statement made A statement made by a witness under section 161 of the Code of Criminal
^'licVofflco-1 10 Proceûrei 1882, to a police-officer investigating a case may be proved at the
making Midlives- trial of such case to contradict such witness, the witness having been first
ligation—Use of cross-examined on the point in respect of which it is sought to contradict him.
tocontr'llict wit- But where it appeared that, but for the principal witness for the defence having
ness—Use of been discredited by means of proof of a previous inconsistent statement made
rainsuicevised
oft* ■ • keent'ieaCqUit(efl)
Sil'(' witness
jt wa8before the this
fold, that investigating
amounted officer, theofaccused
to a using would have
such statement as
evidence against the accused within the meaning of section 1C2 of the Code.
Queen-Empress v. Madho, I. L. R., 15 All., 25 (1892).
Statements of Statements of witnesses recorded by a police-officer while making an in-
witnosses re-^ vestigation under section 161 of the Criminal Procedure Code, 1882, form
officers yinvc8ti- no portion of the police diaries referred to in section 172, and an accused
eating niider person on his trial has a right to call for and inspect such statements and
<h«arv?in— nivht cross-examine the witnesses thereon. Bikao Khan v. The Queen-Empress,
"SJ to l. L. B., 16 Cal., 610 (1889).
call for and in-
dtaries PoI'C0 Instances of statements made by an accused person to a police-officer
—— held to be admissible and inadmissible in evidence against such accused
Evidence— person. A medical man who has not seen a corpse which has been subjected
™scamtonpolice- t0 11 post-mortem examination, and who is called to corroborate the opinion
officer during of the medical man who made such post-mortem examination, and who has
Adinlsskms°- ~ stilte1^ what he considered was the cause of death, is in a position to give
Confessions- evidence of his opinion as an expert. The proper mode of eliciting such
^nce'"^—*Me °P'"'on 's to Pu* "*e s>g»s observed at tlio post-mortem examination to the
di«U witnesses, witness and to ask what in his opinion was the cause of death on the hypo-
evidence of - thesis that those signs were really present and observed. Queen-Empress v.
: M^rtanhow Meher AU Xullick, I. L. K., 15 Cal., 58'.) (1888).
elicited.
Confessional The test of the admissibility under section 27 of the Evidence Act of
stnternonis information received from an accused person in the custody of a police-
ru" tody of" officer, whether amounting to a confession or not, is :—" Was the fact dis-
police—Test of covered by reason of the information, and how much of the information was
admissibility. tne immediate cause of the fact discovered, and as such a relevant fact ? "
Queen-Empress v. Commer Sahib, I. L. B., 12 Mad., 153 (1888).
Statement ^ statement reduced to writing by a police officer under section 162 of
taken 'down liy the Code of Criminal Procedure, 1882, cannot be used as evidence for the
a police-officer accused. But though it is not evidence, the police-officer, to whom it was
"Êvidence" made, may use it to refresh his memory under section 159 of the Evidence
Act I of it<2. Act (I of 1872), and maybe cross-examined upon it by the party against
whom the testimony aided "by it is given. The person making the statement
may also be questioned about it ; and, with a view to impeach his credit, the
police-officer, or any other person in whose hearing the statement was made,
can be examined on the point under section 155 of the Evidence Act. Queen-
Empress v. Sitaram Vithal, I. L. B., 11 Bom., 657 (1887).
Evidoncc Act The accused wore charged with theft of some jwari. During the police
fessfons'madet and
»epo'l°icc-officer? investigation
concealedtney
it inadmitted beforethey
a jar, which the police that produced.
forthwith they had taken the grain
The identity of
the jwari recovered with that stolen was not proved to the satisfaction of
the trying Magistrate except by these admissions, and upon these admissions
they were convicted of theft. Held, that as the prisoners themselves pro
duced the jwari, it was by their own act, and not from any information given
by them, that the discovery took place. Section 27 of the Evidence Act,
therefore, did not apply ; and though the fact of the production of the pro
perty might be proved, the accompanying confession made to the police was
inadmissible in evidence. Queen-Empress v. Kamalia, I. L. R ., 10 Bom.,
595 (1886).
No Judicial officer dealing with the provisions of section 27 of Act I of Confession
1872 should allow one word more to be deposed to by a police-officer detailing "incer-Elf-
a statement made to him by an accused, in consequence of which he discovered deuce Aet-
a fact, than is absolutely necessary to show how the fact that was discovered £} bod"??,
is connected with the accused so as in itself to be a relevant fact against him. not for'throm-
Section 27 was not intended to let in a confession generally, but only such "W-Theft, in-
particular part of it as set the person to whom it was made in motion, and led |9nttl0n 40 con"
to his ascertaining the fact or facts of which he gives evidence. Thus, when
a police-officer deposed that an accused had told him that he had robbed K of
Rs. 48, whereof he had spent lis. 8 and had got lis. 40, and that he had made
over the Ks. 40 to him, held, that the statement that he robbed K of lis. 48
was not necessarily preliminary to the surrender of the Hs. 40, and was
inadmissible in evidence against him. When also a police-officer deposed to
the fact that the accused who was charged with murder had stated to him that
he and K had stolen some hides from C and upon such statements he had
sent for C and recorded his information, and when it appeared that C had
already informed the police of the fact of the theft, though the witness was
not aware of it, hel-l, that the statement was inadmissible upon the ground
that it would be most dangerous to extend the provisions of section 27, and
allow a police-officer, who is investigating a case, to prove' an information
received from a person accused of an olfence in the custody of a police-officer,
on the ground that a material fact was thereby discovered by him, when
that fact was already known to another police-officer. Although, under some
circumstances a charge of murder may be sustained when the body of the
person said to have been murdered is not forthcoming, still, when that is the
case, the strongest possible evidence as to the fact of the murder should be
insisted on before an accused is convicted. When an accused charged with
murder was allege 1 to have taken a boat from a place where it had been
secured by its owner, and after proceeding some distance in it had abandoned
it, and when he was charged with the theft of the boat, held, that the charge
was unsustainable, inasmuch as it was evidently not his intention to convert
it to his own use, and make it permanently his own property, but merely to
make use of it for the purpose of aiding him in escaping. Adu Shikdar v.
Queen- Empress, I. L. It., 11 Cal , 635 (1885).
In a trial upon a charge of murder, it appeared that the deceased shortly statement ns to
hefore her death was questioned by various persons as to the circumstances cause of death—
in which the injuries had been indicted on her, that she was at that time un- sSl'imed in™!'-'
able to speak, but was conscious and able to make signs. Evidence was swer to ques-
offered by the prosecution, and admitted by the Sessions Judge, to prove the bSuTof'cv'i™'"
questions put to the deceased, and the signs made by her in answer to such deuce as to
questions. Held by the Full Bench (Maiimood, J., dissenting), that the qucs- " Pi,0f"
tions and the signs taken together might properly be regarded as "verbal •■ verbal
statements " made by a person as to the cause of her death within the mean- statement,
ing of section 32 of the Evidence Act, and were therefore admissible in evi
dence under that section. Per Straight, J., that statements by the witnesses
as to their impressions of what the signs meant were inadmissible and should
be eliminated ; but that assuming that the questions put to the deceased
were responded to by her in such a manner as to leave no doubt in the mind
of the Court as to her meaning, it was not straining the construction to hold
that the circumstances were covered by section 32. Per Mahmood, J.,
that the expression " verbal statements " in section 32 should be confined
to statements made by means of a word or words, and that the signs
made by the deceased, not being verbal statements in this sense, were not
admissible in evidence under that section. Per Petheram, C. J., that the
signs could not be proved as "conduct " within the meaning of section 8 of
the Evidence Act, inasmuch as, taken alone, and without reference to the
questions loading to them, there was nothing to connect them with the cause
of death, and so to make them relevant ; while the questions could not be
Powers of Police, [Chap. XlV.
proved cither under Explanation IT. of section 8, or under section 9, inasmuch

as the condition precedent to their admissibility under either of these provi
sions was the relevancy of the conduct which they were alleged to affect or
of the facts which they were intended to explain. The " conduct " made re
levant by section 8 is conduct which is directly and immediately influenced
by a fact in issue or relevant fact, and it docs not include actions resulting
from some intermediate cause, such as questions or suggestions by other per
sons. Per MAHHOOD, J., that the word "conduct " as used in section 8.does
not mean only such cocduct as is directly and immediately influenced by a fact
in issue or relevant fact ; that the signs made by the deceased were
the conduct of " a person an offence against whom was the subject of any
proceeding " and were relevant as such under section 8 ; and that the ques
tions put to her were admissible in evidence either under Explanation //.of
the same section, or under section 9, by way of an explanation of the
meaning of the signs. \ Queen-Empress v. Abdullah, I. L. li., 7 All., 385
(1885).
Evidence of Statements made to the police by accused persons as to the ownership of

ownership— property which is the subject-matter of the proceedings against them, al
Evidence Act
I of 1874-Con- though inadmissible as evidence against them at the trial for the offence with
fession made to which they are charged, are admissible as evidence with regard to the owner
l»olice-officcr,
admissibility ship of the property in an inquiry held by the Magistrate under section 523 of
of, for other the Criminal Procedure Code, 1882. An order, after trial, made by a Crimi
purposes than nal Court for the restoration of property under section 517 of the Criminal
as a confession.
Procedure Code, 1882, is conclusive as to the immediate right to possession ;
where an order has to be made under section 523, the Magistrate may in the
inquiry proceed on such evidence as is available and make an order for hand
ing the property to the person he thinks entitled. This does not conclude the
right of any person. The real owner may proceed against the holder of the
articles or for damages as for conversion. The High Court declined to inter
fere with an order, made by a Magistrate under section 523 of the Code, for
the delivery of property, where the Magistrate made such order upon I he
mere evidence of a confession of the accused to the police that the property
was stolen from the adjudged owner. Queen- Empress v. Tribhotan Nanek-
chand, I. L. R., 9 Bom., 131 (1884).
Confession B and R, accused of offences under section 414 of the Penal Code, gave
made to a
police-officer- information to the police which led to the discovery of the stolen property.
Act I of 1872 This information was to the effect that the accused had stolen a cow and
calf, and sold them to a particular person at a particular place. Held by the
Full Bench (MAHMOOD, J., dissenting), that section 27 of the Evidence Act is
a proviso not only to section 20, but also to section 25 ; and that therefore
bo much of the information given by the accused to the police-officer, whe
ther amounting to a confession or not, as related distinctly to the facts there
by discovered, might be proved. Per Mahmood, J., that section 27 of the
Evidence Act is not a proviso to section 25, but only to section 20 ; and that,
therefore, the statements in question were wholly inadmissible in evidence.
Per Straight, Officiating C. J.—That where a statement is being detailed by a
constable as having been made by an accused, in consequence of which he
discovered a certain fact or certain facts, the strictest precision should be enjoin
ed on the witness, so that there may be no room for mistake or misunderstand
ing. Observations by Straight, Officiating C. J., as to the mode in which
the testimony of witnesses should be recorded in cases where two persons
are being tried. Observations by Straight, Officiating C. J., and Duthoit, J.,
upon the nature of confessions by accused persons in India, and the circum
stances in which such confessions are innde. Queen-Empress v. Bubu Lai,
I. L. K.. 6 All., 509 (1884).
S. 162.] Powers of Police, 191
In giving evidence a police-officer may refresh his memory by referring Evidence-

to documents in which he has, under section 1 19 of the Code of Criminal wiinc"^"'"!^*
Procedure, 1872, reduced into writing statements of persons examined by police-officer
him during an investigation, but the documents themselves cannot be used duriiiK nn in-
as evidence, and a Judge should not read such documents to a jury in order iSrm'liinlrTno-
to point out discrepancies between the evidence and previous statements of mory- Medical
the witnesses. The evidence of a medical man who has seen, and has made enceôf-OpN*
a post-mortem examination of the corpse of the person touching whose death nion of experts
the inquiry is, is admissible, firstly, to prove the nature of injuries which he ]^"mfnij;jte<,—
observed ; and, secondly, as evidence of the opinion of an expert as to the 8os"™ns,Str!al
manner in which those injuries were inflicted, and as to the cause of death, medical wit-
A medical man who has not seen the corpse is only in a position to give JJIJJ, "^j,'1^
evidence of his opinion as an expert. The proper mode of eliciting such before the Ma-
evidence is to put to the witness hypot helically the facts which the 5^t™J1e-i><"'-~
evidence of the other witnesses attempts to prove, and to ask the wit- ation report*."1"
nesses' opinion on those facts. Section 323 of the Code of Criminal Proce
dure, 1872, does not in any way preclude the Judge at a Sessions trial from
calling and examining the medical witness who has been examined before the
Magistrate, and in every case in which the deposition taken by the Magis
trate is essentially deficient or requires further elucidation, such witness
should be called and examined by the Sessions Judge. A medical man in
giving evidence may refresh his memory by referring to a report which he
has made of his post-mortem examination, but the report itself cannot bo
treated as evidence, and no facts can ibe taken therefrom ltoghum Singh
v. The Empress, I. L. K., 'J Cal., 455 (1882).
If the certificate required by section 122 of the Code of Criminal Procc- Evidence-Con-
dure, 1872, that a confession voluntarily made is not recorded by the Magis- ûLnThJ;ertlfl~
trate at the time the confession is made, or at any rate, on the day it is re- Indian Evid-
duced to writing, the confession is bad and inadmissible in evidence. To render J™* Act I of
the statement of one person jointly tried with another for the same offence '
liable to consideration against that other, it is necessary that it should amount
to a distinct confession of the offence charged. Empress v. Daji Jfarsu, I. L.
B., 6 Bom., 288 (1882).
P, accused of the murder of a girl, gave to a police-officer a knife, say- £)°"l'c"j|<j" "",(,c
ing it was the weapon with which he had committed the murder. He also officer—Act I
said that he had thrown down the girl's anklets at the scene of the murder of 1872 (Indian
and would point them out. On the following day he accompanied the police- EvlJc"ce Act)-
officer to the place where the girl's body had been found, and pointed out the
anklets. Held, that such statements, being confessions made to a police-offi
cer whereby no fact was discovered, could not be proved against P. Obser
vations on the use of confessions made to police-officers. Empress of India v.
Pancham, I. L. K., 4 All., 108 (1882).
The dying statement of a deceased poison must be taken in the presence Evidence—Dy
of the accused ; if not so taken, the writing cannot be admitted to prove the p^^mceofac"
statement made. The statement may be proved in the ordinary way by a cased- Frame
person who heard it, and the writing may be used for the purpose of refresh- of chaine.
lug the witness's memory. A prisoner was charged with "causing the death of
A by inflicting a wound on him with a ' ehheni ' with the intention of causing
bodily injury, such as was sufficient, in the course of nature, to cause death,
or which he knew to be likely to cause death." Held, that the charge was de
fective and inexact as regarded the second and third clauses of the definition
of murder in section .'{'Ml of the Penal Code. Willi reference to the second
clause, it should have run "likely to cause the death of A, the person to whom
the harm was caused." With reference to the third clause, it should have said
ordinary course of nature. The Empress v. Samiruddin, I. L. R., 8 Cal.,
211 (1881).
192 'Powers of Police, [Chap. XVI.
niorai'ifuinnade ^ prisoner on his trial is not entitled to insist that a memorandum made
by ^'iiceôfflccr '>>' a police-officer under the provisions of section 119 of the Code of Criminal
—Refreshing Procedure, 1872, shall, in the course of the examination of such oflicer, he re-
ry—EMininniioii ferrei' to by the latter for the purpose of refreshing his memory. The
of witness. Empress v. Kali Churn Chunari, I. 15. R., 8 Cal., 154 (1881).
Admission made An atlmission made by an accused person to a police-officer before arrest
to police-officer js admissible in evidence". The Empress v. Dabee Pershad, I. L. R., 6 Cal.,
before arrest. m (1881), '
Evidence—Con- A statement made to a police-officer by any accused person while in the
fession -Adnata- custody of the police, although intended to be made in self-exculpation and
culpatory state- not as a confession, may be nevertheless an admission of a criminating cir-
ment to police- cumstance, and, if so, under sections 25 and 2(3 of the Indian Evidence Act I
custody? ° of 1872> ;t cannot be proved against the accused. After excluding evidence im
properly admitted and put before the jury, the High Court found that the re
maining evidence was not of such a character that a conviction might reason
ably be based upon it. It accordingly reversed the convictionaud sentence
of the accused, declining to order his re-trial. Imperatrix v. PawUuirinuih,
I. L. R., 6 Bom., 34 (1881).
Ktat^mentto8- Where the accused was charged under section 193 of the Penal Code with
inspector of having given false evidence, in that he denied having made certain state-
police' ments which ho was alleged to have made to the inspector of police, that
officer was examined, and merely put in two documents containing the state
ments alleged as the rocords of what had taken place. Held, that these docu
ments being inadmissible .in evidence under section 119 of the Code of Crimi
nal Procedure, 1872, evidence ought to have been given as to what was actu
ally stated by the accused to the inspector of police. In re Sheikh Dabu, 6
Cal. L. R., 47 (1830).
Confession-In- Where more persons than one are jointly tried for the same offence, the
missibnity" of confession made by one of them, if admissible in evidence at all, should be
c o nf e s si 0 n taken into consideration against all the accused, and not against the person
"used—Discov*" a'one w'10 niade it. The circumstances which will render a confession objec-
ery of evidence, ted to under sections 24— 26 of the Evidence Act (I of 1872) admissible in
evidence discussed. Empress v. Rama Birapa, I. L. R., 3 Bom., 12 (1878).
Confession to a Under section 25, Evidence Act, a confession made to a police-officer is
police-officer, inadmissible in evidence except so far as is provided by section 27. It is
immaterial whether such police-officer is investigating the case—the fact that
such person is a police-officer invalidates a coufession. In re Hirau Miya,
1 Cal. L.R., 21 (1877).
Admissibility in The prisoner, on his arrest, made a statement in the nature of a confea-
feVsion—Folic"-' 8'0n wmch was reduced into writing by one of the inspectors in whose custo-
ofheer also a dy the prisoner was, and subsequently signed and acknowledged by the pri-
Maa:istrate--Do- soner jn t]ie presence of the Deputy Commissioner of police at the police
sioncr of Police office, the Deputy Commissioner receiving and attesting the statement in his
in Calcutta— capacity as Magestrato and Justiee of the Peace. At the trial of the prisoner
Case?"1 cerUtled at Criminal Sessions of the High Court, this statement was tendered in evi-
by Advocate- dence against him, and admitted by the Judge, who over-ruled an objection on
General. behalf of the prisoner that, under section 25 of the Evidence Act, it was inad
missible. On a case certitied by the Advocate-General under clause 20 of the
Letters Patent, held, that the confession was, under section 25 of the Evi
dence Act, not admissible in evidence. Per Garth, C. J.—Section 26 of the
Evidence Act is not to be read as qualifying the plain meaning of section 25.
In construing section 25 the term "police-officer is not to be read in a tech
nical sense, but in its more comprehensive and popular meaning. Per cwiam.—
Section 167 of the Evidence Act applies as well as to criminal as to civil cases.
S. 163.] Poivers of Police. 193
Per (jAETU, C J., (Po.vniEX, J., doubting).—Tlie Court which under that sec
tion is to decide upon the sufficiency of the evidence to support the convic
tion is, in a case coining before the Court under section 20 of the Letters
Patent, the Court of Keview, and not the Court below. Such decision is to bo
come to on being informed by the Judge's notes, and if necessary by the
Judge himself, of the evidence adduced at the trial. Per curiam. — Apart
from section 107, the Court has power, in a case under clause 20 of the Letters
Patent, to review the whole ease on the merits, and affirm or quash the con
viction. The Queen v. Hurribok Chunder Ghose, I. L. R., 1 Cal., 207 (1870).
Under section 27 of the Evidence Act not every statement made by a Si,;"j'' * ri.
person accused of any offence while in the custody of a police-officer con- j",,,,,", ditnm
nected with the production or rinding of property, is admissible. Those police custody,
statements only which lead immediately to the discovery of property, and, in
so far as they do lead to such discovery, are properly admissible. What
ever be the nature of the facts discovered, that fact must, in all cases, be itself
relevant to the case, and the connection between it and the statements made
must have been such that the statement constituted the information through
which the discovery was made, in order to render the statement admissible.
Other statements connected with the one thus made evidence, and thus medi
ately, but not necessarily or directly, connected with the fact discovered, are
not admissible. That a witness says that a plan was prepared in his presume
is not a sufficient reason for admitting the plan in evidence, unless the witness
also savs that to bis own knowledge the plan is correct. Reg. v. Jora lla»j>,
II Bom. 11. C, 242 (1874).
Section 119 of the Code of Criminal Procedure, 1872, not making it obli- statement*
gatory upon a police-officer to reduce to writing any statements made to him iu«Ie to the po«
during an investigation, neither that section, nor section 91 of the Evidence
Act, renders oral evidence of such statements inadmissible, if the statement
be actually reduced to writing, the writing itself cannot be treated as part of
the record or used as evidence, but may be used for the purpose of refreshing
memory under section 1511 of the Evidence Act. Consequently, the person
making the statements may properly be questioned about them : and, with a
view to impeach his credit, the police-officer himself, or any other person in
whose hearing the statements were made, can be examined on the point under
section 155 of the Evidence Act. liey.v. Uttamchand Kiipurchand, 11 Bom.
II. C, 120 (1874).
163. (/) No police-officer or person in authority shall offer "° inducement

or m ake, or cause to be offered or made, any such iadtiCTfrTcTTt7ti;',e0,Tered'
threat or promise as is mentioned in the Indian Evidence Act*
1872, section 24.
(2) But no police-officer or other person shall prevent, by

any caution or otherwise, any person from making in the course of
any investigation tinder this chapter any statement which he may
he disposed to make of his own free will.
[21 (Act I of 1872). A confession made by an accused person is iCo 11 fe«»lon

irrelevant in a criminal proceeding, if the making of the confession SHcemeiit', '""
appears to the Court to have been caused bv any inducement, threat or Hireat or pro-
1 1 . .having
promise, . reference to the charge against
\ "the
. accused, person, pro- initfc.
levantWhen irrc-
ia crimi-
ceeding from a person in authority, and sufficient, in the opinion of the "al Procoed"^-1
- Act No. I of 1872.
IT.
Court, to give the accused person grounds, which would appear to him
reasonable, for the purpose that by making it he would gain any ad
vantage or avoid any evil of a temporal nature in reference to the pro
ceedings against him.]
[Confession to [25 (Act I of 1872). No confession made to a police-officer shall
ffb^provS ]0t ke Prove(l as against a person accused of any offence.]
[Confession by Q26 (Act I of 1872). No confession made by any person whilst he
""""Siody ol is in the custody of a police-officer, unless it be made in the immediate
jjroVri""^* presence of a Magistrate, shall be proved as against such person.]
[Row much of [27 (Act I of 1872). Provided that, when any fact is deposed to
cei?ed"from ac- as discovered in consequence of information received from a person ac
cused may be cused of any offence, in the custody of a police-officer, so much of such
proved.] information, whether it amounts to a confession or not, as relates dis
tinctly to the fact thereby discovered, may be proved.]
[Confession [28 (Act I of 1872). If such a confession as is referred to in sec-
moval " of F iln" t'on 24 is made after the impression caused by any such inducement,
pression caused threat or promise, has, in the opinion of the Court, been fully removed,
by inducement,
or pro- :f11 18
• ~,Uv.nt
threat relevant.JT
mise relevant.]
_ [29 (Act 1 of 18/2). If such a confession is otherwise relevant, it
otherwise" "reic- does n°t become irrelevant merely because it was made under a promise
vantnotto
come i>e- of secrecy,
irrelevant . »' .or in consequence
\ . . of
. a . deception
r , ».practised. on . the accused
.
because of pro- person for the purpose ot obtaining it, or when be was drunk, or because
ey, *c.°) sccre" it was made in answer to questions which he need not have answered,
whatever may have been the form of those questions, or because he was
not warned that he was not bound to make such confession, and that
evidence of it might be given against him.]
[Voluntarily [380 (P. C). Whoever voluntarily causes hurt for the purpose
extort8 confer of extorting from the sufferer, or any person interested in the sufferer,
"T* restoration B11^ conêss'on' or au)' information which may lead to the detection of an
of property.]'0" offence or misconduct, or for the purpose of constraining the sufferer, or
any person interested in the sufferer, to restore or cause the restoration
of any property or valuable security, or to satisfy any claim or demand, or
to give information which may lead to the restoration of any property or
valuable security, shall be punished with imprisonment of either descrip
tion for a term which may extend to seven years, and shall also be liable
to fine.
Illuetraltone,
(«). A, a police-officer, tortures Z in order to induce Z to confess
that he committed a crime. A is guilty of an offence under this section.
(b) . A, a police-officer, tortures B to induce him to point out
where certain stolen property is deposited. A is guilty of an offence
tinder this section.
(c) . A, a revenue-officer, tortures Z in order to compel him to pay
certain arrears of revenue due from Z. A is guilty of an offence under
this section.
(</). A, a zemindar, tortures a raiyat in order to compel him to

pay his rent. A is guilty of an offence under this section],
[331 (P. C). Whoever voluntarily causes grievous hurt for the [Voluntaiily
purpose of1 extorting
a _i' ifrom the sufferer,
re • x x j in
• j.i causing
or any person interested the 0us hurtirriov-
to
sufferer, any confession or any information which may lead to the detec- SoVJJ1 ^lo'com-
tion of an offence or misconduct, or for the purpose of constraining the pel restoration
sufferer, or any person interested in the sufferer, to restore or cause the of pro,,ort,v'-'
restoration of any property or valuable security, or to satisfy any claim
or demand, or to give information which may lead to the restoration
of any property or valuable security, shall be punished with imprison
ment of either description for a term which may extend to ten years, and
shall also be liable to fine.]
['318 (P. C). Whoever wrongfully confines any person for the , Wrongful con-
purpose of extorting from the person confined, or any person interested ['^'"eonfessfoii
in the person coufined, any confession or any information which may lead orcompcl res-
to the detection of an offence or misconduct, for the purpose of constrain- J^y0" of 1)ro"
ing the person confined, or any person interested in the person con
fined, to restore, or to cause the restoration of, any property or valuable
security, or to satisfy any claim or demand, or to give information
which may lead to the restoration of any property or valuable security,
shall be punished with imprisonment of either description for a term
which may extend to three years, aud shall also be liable to fine.]
[50G (P. C). Whoever commits the offence of criminal intimida- [Punishment for
tiou shall be punished with imprisonment of either description for a term [jjjyjj,1™1 intimi'
which may extend to two years, or with fine, or with both ;
and if the threat be to cause deatli or grievous hurt, or to cause the [jj threat bo to
destruction of any property bv fire, or to cause an offence punishable c*.use de?"1 , or
. , .• .,, . . , , . i• ■ grievous hurt,
with death or transportation, or with imprisonment for a term which may *c]
extend to seven years, or to impute unchastity to a woman, shall be pun
ished with imprisonment of either description for a term which may ex
tend to seven years, or with fine, or with both.]
If a person while in custody as an accused gives information to the police Stiitsment «a
as complainant in another case, his statements as such informant cannot be complainant
used as evidence against him on his trial. The depositions of witnesses given "y11^ "J,,0^!0"
in a counter-case may be used as evidence against them on their trial as ac- cased jicrson—
cused persons, but such depositions could only be evidence against the persons ^J,"""10"8 _'"
making them The mere oubpwnaing of a witness or ordering him to go in- compelling wit-
to the witness-box does not compel him to give any particular answer or to "ess to answer
answer any particular question. The words "shall be compelled to give" in Vii'^lus ' of" "rue
section 132, Evidence Act, apply to pressure put upon a witness after he is in answers against
the box, and when he auks to lie excused from answering a question. The 1*,™°" '" wronB'
j- orc sections
wording »■ ,12J.
>i ,o,.
130, ,oi ioi and111^
131, 1.32, 148, I-Evidence
'j » * comparedii
Act, possession-
and Affray, evidence
discussed. When a party is in possession for four or live days, though it "» to nature
may be in wrongful possession, another party, although claiming to be the
rightful owner, is not entitled lo go in force to turn him out, much less is he
entitled to take armed men with him for that purpose. In an affray specific
evidence as to the nets of each tighter cannot be expected , but only general
evidence as to the accused taking part in it, and persous who, as in this case,
punted the boats on which the tight took place, and in whose interests the
light on the boats took place, were held to he just as blameworthy as the men
who struck the blows. Mohtr Sheikh v. Queen- Empress, I. L. R.. 21 Cat.,
3?2 (1893).
Admissibility of The accused was charged , under sec tion 411 of tlic Penal Code, with dis-
iiy 'accused whUo 'lone8t'y receiving stolen property. In the course of the police investigation
in iralico custo- the accused was asked hy the police where the property was. He replied that
leadi^'t^dis' '10 ',!U' k°P' flm' W0M'^ show. He said he had buried the property in the
rovervofafart — fields. He then took the police to the spot where the property was concealed,
Statements as and with his own hands disinterred the earthen pot in which the property was
du'ct*."08 °f C0"" kept. He made a second statement when pointing out the spot to the effect
that he had buried the property there. It was contended that those statements
were inadmissible, having been made when the accused was in custody of the
police. Held, (1) That the above statements were clearly in the nature of a
confession, as they suggested the reference that the prisoner committed the
crime, and even if not intended by the accused as a confession of guilt, they
were an admission of a criminating circumstance and would form a very im
portant part of the evidence against the accused, as showing that he had not
come by the property honestly, and, therefore, properly within the rule of ex
clusion in regard to confessions made by a person in custody of the police.
(2) That neither of the above statements was admissible in evidence under Ex
planation I. of section 8 of the Evidence Act, as evidence of the conduct of the
accused. Section 8 so far as it admits a statement as included in the word
"conduct" must be read in connection with sections 25 and 20, and cannot
admit a statement as evidence which would be shut out by these sections.
(3) That the accused's statement, that he had buried the property in the lields.
was admissible in evidence under section 27 of the Evidence Act, as it set the
police in motion and led to the discovery of the property. A statement is
equally admissible under section 27, whether the statement made in such
details as to enable the police to discover the property themselves, or whether
it he of such a nature as to require the assistance of the accused in discover
ing the exact spot where the property is concealed. Quecn-Kmpref* v. Nana,
I. L. R., 14 Bom., (P. B.) 200 (188'.i).
Confession -De- An accused, ill custody at the time, made to a '.Magistrate in Calcutta, in
Son—KvMenos "IC uollr8e of a P<>''<-,e. investigation held in Calcutta, a statement confessing
Act I of 1872— that he had murdered his father. The accused spoke and understood English.
(Fi^jde"cy i; and the Magistrate questioned him iu English, and was answered some times
towns, invustiga in English and some times in Bengali ; whenever the answers were given in
lions in.
English they were so taken down, when in Bengali they were written down in
English and read over to the accused in thai language, who accepted the lilig-
lish as being the meaning of that which he had staled, and signed the docu
ment in the presence of the Magistrate, whoallixed the usual certificate thereto.
In taking this confession, the Magistrate purported to have acted under sections
164 and 364 of the Criminal Procedure Code, 1882. At the trial, subsequent
ly to the admission of the confession in evidence under section 80 of the Evi
dence Act, the Magistrate was called as witness and deposed to the above facts
with reforence to the language in which the confession was taken and the
mode in wdiich it was recorded : heltl, on a reference to a Full Bench as to
whether the confession was inadmissible in evidence by reason of some of the
answers having been given in Bengali but recorded in English, that the provi
sions of section 164 of the Code had no application to statements taken in the
course of a police investigation made in the Town of Calcutta, anil th t
consequently sections 304 and 533 had no application : held, uertvthelest,
that the document was properly admitted upon | lie evidence of the Ma
gistrate under the provisions of section 26 of the Evidence Act Hemble.—
That the provisions of section 164, as read with section 364, would not be
complied with where answers made by an accused to a Magistrate in one
language are taken down in another, unless it could be shown that it was
impracticable to have taken down the answers in the language in which they
were given : and further, that there would l>e grave doubt if such a defect
could be cured by section 533. Qiieeii-Ewpre** v. Xilmadhuh Miller, T. L. I!..
15 Col., 595 (1888).
Instance* of statement* made by an accused person to a police-officer Statement of

held to be admissible and inadmissible in evidence against such accused person. {j^^J^J? d^
A medical man who lias not seen a corpse which has been subjected to a post- mK investiâ*
mortem examination, and who is called to corroborate the opinion of the medi- tion—Adniis-
cal man who made such post-mortem examination, and who has stated what sionsÊxpcrts
he considered was the cause of death, is in a position to give evidence of his evidence of—
opinion as an expert. The pioper mode of eliciting such opinion is to put the ^"^"evidem'o
signs observed at the post-mortem to the witness and to ask what in his of-Opinion of
opinion was the cause of death on the hypothesis that those signs were really •SJS'*? now
present and observed. Queen- Empress v. JJeher Alt Mullkk, I. L. E., 15 e lclt€<1-
Cal., 589 (1888).
Xo Judicial officer dealing with the provisions of section 27 of Act I of Confession made
1872 should allow one word more to be deposed to by a police-officer detailing r^V* îdence'*
a statement made to him by an accused, in consequence of which he discovered Act --Murder,
a fact, than is absolutely necessary to show how the fact that was discovered enijiyeof, when
'
is connected 1 with
-,i .1the accused1 so as in
• itself
1* ^to 1be a relevant
1 x *fact. againsti him.
l* commit—Theft-
body is not forth-
Section 27 was not intended to let in a confession generally, but only such Intention tocon-
particular part of it as set the person to whom it was made in motion, and led *•
to his ascertaining the fact or facts of which he gives evidence. Thus, when
a police-officer deposed that an accused had told him that he had robbed K of
Us. 48, whereof he had spent Its. 8 and had got Rs. 40, and that he had made
over the Rs. 40 to him, held, that the statement that he robbed K of Rs. 48
was not necessarily preliminary to the surrender of the Rs. 40, and was in
admissible in evidence against him. When also a police-officer deposed to the
fact that the accused who was charged with murder had stated to him that he
and A' had stolen some hides from C, and upon such statement he had sent •
fort' and recorded his information, and when it appeared that Chad already
informed the police of the fact of the theft, though the witness was not aware
of it, held, that the statement was inadmissible upon the ground that it would
be most dangerous to extend the provisions of section 27, and allow a police-
officer, who is investigating a case, to prove an information received from a
person accused of an offence in the custody of a police-officer, on the ground
that a material fact was thereby discovered by him, when that fact was al
ready known to another police-officer. Although, under some circumstances,
a charge of murder may be sustained, when the body of the person said to
have been murdered is not forthcoming, still, when tliat is the case, the
strongest possible evidence as to the fact of the murder should be insisted on
bofoie an accused is convicted. When an accused charged with murder was
alleged to have taken a boat from a place where it had beeu secured by its
owner, and after proceeding some distance in it had abandoned it, and when
he was charged with the theft of the boat, held, that the charge was unsus
tainable, inasmuch as it was evidently not his intention to convert it to his
own use, and make it permanently his own property, but merely to make use
of it for the purpose of aiding him in escaping. Adu Shikdas v. Queen-
Empress, I. L. R., 11 Cal., 635 (1885).
A policeman on being cross-examined stated that when he arrested the incriminating

prisoner, the prisoner said to him, Rome Chinamen at the time of the occur- statement by
ivnce came out with hatchets ; in re-examination the policeman so far altered Kiic'e-oWer—
the words stated to have been used by the prisoner as to substitute for the Evidence of
words at the time of the occurrence the words at the time, and on being asked police-consta-
if the prisoner had explained " what time," answered he said at the time I '
struck the deceased. Counsel for the prisoner interposed and objected to the
evidence. The Standing Counsel contended that he was entitled to clear up
a matter which had been left in doubt by the cross-examination. Held, that
the evidence could not be given. Queen-Empress v. Mathews, I. L. R., 10
Cal., 1022 (1884).
Confession—In- A Deputy Magistrate, before taking down u statement from a person
ducement iu brought before him by the police, noted on the paper on which lie was about.
5encT Act-Act to tllkc down thc statement, the following words which, after excluding the
lot 1874. police-oftieers from his presence, be had verbally addressed to the accused :—
" After excluding from my presence the police-officers who brought him, I
warned the accused that what be would say would go as evideuee against
him ; so he bad better tell the truth." Held, that the use of such language
was calculated to hold out an inducement to the prisoner to confess, and that
such a confession was therefore inadmissible in evidence against him.
Queen-Empress v. Uzetr, I. L. It., 10 Cal., 775 (1884).
Confession be- A village Magistrate is not a police-officer, and, therefore, a confession
fore village made to a village Magistrate is not inadmissible in evidence by reason of
Magistrate. Rection 25 of the Evidence Act, Queen-Empress v. Sama Pnpi. I. L. R., 7
Mad., 287 (1883).
Confession Au- A statement made to a police-officer by an accused person while in the
• misaion-Sclf-fix- custody of the police, although intended to be made in self-exculpation and
nicnt'to^poficc- not 118 a confession, may be nevertheless an admission of a criminating cir-
ottlcer in police cumstance, and, if so, under sections 25 and 2(5 of the Evidence Act No. I of
custody. 1872, it cannot bo proved against the accused. After excluding evidence
improperly admitted and put before the jury, the High Court found that the
remaining evidence was not of such a character that a conviction might
reasonably be based upon it. It accordingly reversed the conviction and
sentence of tin; accused, declining to order bis re-trial, fmperatrix v. Pain/-
harinath, I. L. R.. fi Bom.. 34 (1881).
Proof*""/1-oral The mat ter before a " panchayat " was whether M and A' ha 1 murdered
confession— B, and thereby disqualified themselves from further intercourse with the rest
Confession ,tto of their brotherhood. J/ and Bmade certain statements before the panchayat
i':'""!lha'bv which it was afterwards sought to prove against them on their trial for the
ilireat. ' murder of B as confessions corroborating the evidence of an approver. The
witnesses called to prove these " confessions " did not state specifically what
was said by if and K before the pancliayat. One witness, a member of the
panchayat, said :-— ' .1/ confessed and A' acquiesced." Another witness, a
member of the panchayat. said :—".1/ and K were taxed with taking B's bouse ,
upon which both admitted having murdered him." The same witness also
said :—" The admissions were not taken down.'7 It appeared that it was not
till at the sixth meeting of the panchayat, and when .1/ and A' were threatened
with excommunication from caste for life, that they made such statements.
Held, that if the statements attributed to .V and A had been actually made
and assented to, and this fact had been duly proved, the provisions of section
21 of Act I of 1872 could not be pleaded against their admissibility on the
ground that such statements bad been caused by such threat, for the members
of the panchayat were not in authority over .1/ and A' within the meaning of
that section, nor was there any threat marie having reference to any charge
against them. The statements, however, could not be accepted as sufficient
in themselves to corroborate the evidence of the approver or to support the
conviction of M and for the murder of B. The statements were in general
terms and represented only the impression covered by what might have been
said to the mind of the witnesses. It was always essential that the Court
should know- as nearly as possible what were the words used by the sup
posed confessors, and what were the questions or matters in regard to
which they were said. It might have been that the words ascribed to .1/
and A' taken with the questions put uud the exact subject-matter of the
enquiry did not amount to a confession of the guilt believed by the hearers
to have been confessed. Empress of India v. Mohan Lai. I. L. B.. 4 All., 4U
(1881).
W, a travelling auditor in the service of the G. I. P. Railway Company, Coiifeeeion- In-

having discovered defalcations in the account of the prisoner, who was a jjjj^f^TuUioHty"
booking clerk of the Company, went to him and told him that " he had better
pay the money than go to jail," and added that " it would be better for him to
tell the truth, ' after which the prisoner was brought before the Traffic Mana
ger in whose presence he signed a receipt for, and admitted having received,
a sum of rupees 826-8-0. The prisoner was subsequently put on his trial for
criminal breach of trust as a servant in respect of this and of other sums :
Held, that the words used by IF, the travelling auditor, constituted an in
ducement to the prisoner to confess, and that W was a person in authority
within the meaning of section 24 of the Evidence Act, and that the receipt
signed by the prisoner was. therefore, not admissible in evidence on his
trial. Held alxo, (Bavi.ey, J., dissentiente), that the High Court, in consider
ing a point of law reserved under clause 20 of the Letters Patent, where it is
of opinion that evidence has been improperly admitted as to one of two heads
of charge of which a prisoner stands convicted (two heads of charge relat
ing to distinct ami separate offences), and that the conviction on such head of
charge is bad, has power to review the whole case and, if it appears that the
evidence improperly admitted could not reasonably be supposed to have in
fluenced the jury as to the latter head of charge, ought not to set aside the con
viction on that head of charge, but should proceed to pass judgment and sen
tence on it. Semble.—Section 1(!7 of the Evidence Act applies to criminal
trials by jury in the High Court. Rey. v. Xaoroji Dadabhai, 9 Bom. H.
C, 358 (1872).
Section 109 of the Code of Criminal Procedure, 1861, refers to cases ConteMion—
where the confession of a prisoner has been made to the Magistrate conduct- vl encfl*
ing the investigation, and not to the police It is only when properly made to
the Magistrate that the confession can l>e used as evidence against the prison
er The mere standing by of the Magistrate when the confession is being
made to the police is not sufficient. Queen v. Domun Kahar, 12 W. R., 82
(1869).
An admission obtained from a prisoner by persuasion and promises of Pe^"^^^
immunity by the police ought not to be received in evidence as being in direct Police,
contravention of section 146 of the Code of Criminal Procedure, 1861. The
deposition of the police-officer, moreover, should be taken before the admis
sion can at all be used against the prisoner, under section 150 of the Code. It
must be proved that the prisoner received or retained plundered property know
ing it tr> be plundered property, before he can be convicted under section 412
of the Penal Code. Dixhoo .Uuujee (appellant), 9 W. R., 16 (1868).
G D presente 1 a Government Promissory Note, at the Bank of Bengal, fwere'to'poUc*
bearing a forged endorsement, and was arrested. A police-constable asked Sf constable or
if he knew G D. N replied that he knew him as a common man. The police- Magiitrate.
constable then asked X if he knew anything about the Note. N replied
that he did not. No threat or inducement was held out, nor was any caution
administered to N. Held, that the statements made by N in answer to the ques
tions of the police-constable were admissible. N was afterwards brought
before if, the Deputy Magistrate of Serampore, who told him before any de
positions were taken, that he (.V) was charged with having received a stolen
Promissory Note, and R asked him if he wished to say anything. N reply
ing in the affirmative, if, without administering any caution to him, asked him
how or where he had obtained the Note, and other questions, the answers to
which were taken down. N was again brought up before if, and was asked
whether a Promissory Note then produced was the one he had delivered to
G D to take to the Bauk. if told N that he was not bound to answer
the question, but that if he did, the answer would be taken down j and that
if he objected to answer, that would also be noted. R committed N to take
his trial before the High Court. Held, that on the trial, the answers of N to
2C0 Powers of Police. [Chap. XIV.
the questions of R, whether li acted as a Justice of the ""cace for Bengal, or

as a Magistrate, were admissible. Where the High Court had jurisdiction to
try a prisoner for the offence committed, if the charge had been made against
him by a person authorised to make that charge, and the prisoner pleaded
guilty,—Held, proof need not be given that the officer had authority to send
up the charge Objections to the jurisdiction should lie made before pleading to
the general issue. The construction of section 21) of the Letters Patent is, that
the High Court has power, if in its discretion it thinks right to exercise it, to
transfer the investigation or trial of any criminal offence committed in Calcutta
to a Mofussil Court, which is otherwise competent to try it, or to direct tin- trial
by the High Court of an offence committed in the mofussil. " Competent to
investigate it " does not include competency as regards local jurisdiction ; but
only competency with regard to the offender, the nature of the offence, and
the punishment. The High Court could have directed the preliminary investi
gation of the charge against A' by the Magistrate of Serampore, but that it
did not appear in the caption of the charge or in evidence that the Court had
so directed it. lleltl, no ground for arrest of judgment, but the objection
might have been raised before the jury was sworn, under section 41 of Act
XVIII of 1802. The High Court being a Court of superior jurisdiction, the
want of jurisdiction is not to be presumed, but the contrary. Semble.—The
High Court was bound to take judicial notice that li was a Justice of the
Peace for Bengal. (Jneen. v. Nubadirip Chandra Gosirami, 1 Ben. L. It.,
15 (1868).
A police-officer acts improperly and illegally in offering any inducement
i-onf(""on7— to an accused person to make any disclosure or confession. No part of his
Evidence by evidence as to the discovery of facts in consequence of such confession is
police officer. |t.gal|y admissible. Uemarks to the effect that the prisoner was a person of
wealth and influence, and had prevented truth from appearing, ought not,
unless established in eviderce, to find a place in a judgment. Queen v.
Dliuium Dutt Ojha, 8 W. B., 13 (1867).
Statement of The evidence of a policeman who overheard a prisoner's statement made
prisoner oror- jn another room, and in ignorance of the policeman's vicinity, and uninfiu-
fM«M by police- cnce(j b ;tj ig not i0g„Hy inadmissible. Queen v. Sageena, Iff. R., 56
m"1 (1867).
Admission of An admission of crime, when fairly made after due warning, is not inad-
rrime made be- missible, simply because, at the time it was made, no formal accusation had
fore formal ac- i)een . ni](, against the party making it. Queen v. Ham Churn Chamar, 4
t'"8""0"- W. B., 10 (1865).
Power to retoni 164. {1 1 Every Magistrate not being a police-officer may

luitcninito and reCur(j anv statement or confession made to him in the course of
an investigation under tins chapter or at any time afterwards
before the commencement of the inquiry or trial.
(2j Such statements shall he recorded in such of the man
ners hereinafter prescribed for recording evidence as is, in his
opinion, best fitted for the circumstances of the case. Such con
fessions shall be recorded and signed in the manner provided in
section 3G4, and such statements or confessions shall then be for
warded to the Magistrate by whom the case is to be inquired
into or tried.
(3) No (Magistrate shall record any such confession unless,
upon questioning the person making it, he has reason to believe
that it was made voluntarily ; and, when he records any confes

sion, he shall make a memorandum at the foot of such record to
the following effect : —
" 1 believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over t:> the per
son making it and admitted by him t > be correct, and it contains
a full and true account of the statement made by him.
(Signed) A. B.,
Magistrate."
Explanation.—It is not necessary that the Magistrate receiv
ing and recording a confession or statement should bo a Magis
trate having jurisdiction in the case.
[80 (Act I of 1872). Whenever any document is produced before [fHl™,
any Court, purporting to be record or memorandum of the evidence, or produced us rc-
of any part of the evidence, given by a witness in a judicial proceeding, deuce] °W
or before any officer authorised by law to take such evidence, or to be
a statement or confession by any prisoner or accused person, taken in
accordance with law, and purporting to be signed by any Judge or
Magistrate, or by any such officer as aforesaid, the Court shall presume—
that the document is genuine, that any statements as to the circum
stances under which it was taken, purporting to be made by the person
signing it, are true ; and that such evidence, statement, or confession
was duly taken.]
The sections comprised in Chapter XIV of the C riminal Procedure Code, ~ o(
1882, (except section 155), do not apply to t lie police in the Presidency towns, prisoner nmde
and consequently a statement or confession made to a Presidency Magistrate j^('t'Ûp1I|,t,lir0i_
does not come within secti m Kit, and the procedure prescribed in regard to "prisoner"roiuli-
the recording of statements or confessions l>y that section and (by reference) in the course of
section 15(14 does not apply to statements and confessions recorded by a Pre- °r utter inquiry-
sidency Magistrate before the commencement of the trial. But such state
ment or confession, though not taken under section HU, is admissible in evi
dence against the prisoner. During an inquiry before a Presidency Magistrate
after the evidence for the prosecution was taken, the Magistrate examined the
accused under sections 20.1 and 344 of (lie Code. The accused was examined
in Marathi, but the questions and answers were recorded in English. The
Magistrate deposed at the trial that it was the invariable practice in Ins Court
to take down depositions in English, and that he could not himself have accu
rately recorded the prisoner's statement in Marathi. He also deposed that the
statement was correctly recorded in English, and that each question and an
swer when recorded was interpreted to the accused in Marathi, and that the
accused then made his mark at the end of the recorded statement. He fur
ther stated that there were at hand native subordinate officials of his Court
who could have recorded the statement in Marathi, but that he himself had
not sufficient know ledge of Marathi as to be able to read what was written by
such a subordinate, or to satisfactorily check or test the correctness with which
it represented the statement made by the accused. Held that, assuming that
it was practicable to record the statement in Marathi, and that consequently
it was irregular, with reference to section 304 of the Code, to record it in
English, the statement was nevertheless admissible in evidence under section
533, the irregularity not having injured the accused as to his defence on the
merits. Queen-Empress v. Visrum liabcj', I. L, R., 21 Bom., 495 (1896).
202 Powers of Police, [Chap. XIV.
Confession- It is unsafe for a Court to rely on and act upon a confession which has
Confession sub- been retracted unless, after consideration of the whole evidence in the case, the
tractcd, ' effect Court is in a position to come to the unhesitating conclusion that the con-
fession is true ; that is to say, namely, unless the confession is corroborated by
credible independent evidence. Queen-Empress v. Mahabir, I, L, R . 18 All., 78
(1895).
Pardon, with- Two persons, J and U, were charged with the murder of U's husband, and
draws] of-Con- fa the course of the police enquiry made certain statements to the police,
to prisoner- Ihey wore then sent np by the police to a I >eputy Magistrate lor enquiry. ./
Power of Ses- made three statements on the 28th of February, the 1st of March, and the 9th
tr^poMon not of. Matcni '8U4, respectively, two of which were confessions, the third being a
committed - withdrawal of such confessions. U also made two statements on the 2nd and
dence oT' ^t'1 °f ârch, tne msf of wbich was a confession and the second a with
drawal thereof. On the 24th of April, U was tendered a pardon, and was
thereafter treated as an approver, in which capacity she gave evidence against
./. J was then committed to the Court of Sessions to take his trial, U being
sent up as an approver. In the SessionB Court V resiled from her deposition
before the Committing Magistrate, and was then and there treated as an
accused person, and placed on her trial with the other accused,- and the depo
sition aforesaid was put in as evidence. Hot!, accused were convicted mainly
on their confessions, J of murder and U of abetment of murder. Held, that
the conviction of V was bad, the Court of Sessions having bad no jurisdiction
to try her as she was never committed to that Court by any competent Magis
trate. Held, that the conviction of J was also bad—(1) Because V* state
ment to the police was not admissible in evidenee. (2) Because her state
ments on the 2nd and 9th of March were not under the circumstance admis
sible in evidenee, as she was not being legally tried jointly with him for the
same offence. (3) That her deposition on the 24th of April was not admis
sible in evidence, because, apart from other reasons, J had no opportunity to
cross-examine her. (4) Because J's confession under the circumstances was
not a free and voluntary admission of guilt. Held, on the whole case, that
independently of the aforesaid statements and confessions there was not
sufficient evidence to justify the conviction. Queen- Empress v. Jagat Chan
dra Mali, I. L. R., 22 Cal., 50 (1894).
Confession— A retracted confession, if proved to be voluntarily made, can he acted up-
fwion'-Nce**-' °" a'onS w'"' the other evidence in the case. There is no rule of law that a
sii.v of lor- retracted confession must be supported by independent reliable evidence cor
roborative e\.- roborating in its material particulars. The use to be made of such n con
fession is a matter of prudence rather than of law. Queen- Empress v . Glmr-
y<t, I. L. «., 19 Bom., 728 (1894).
Kwilci cc on A Magistrate, acting under Criminal Procedure Code. 18X2, section lf>4,
lion To 'm P°wv' to administer an oath, and a charge of perjury can be framed with
regard to statements made before him on oath when he is so acting. Queen-
Empress v. Alagu Kone, I. L. R., 1G Mad., 421 (1892).
Confession A police-patel is a p dice-officer within the meaning of sections 25 and
made to ■ police- 2t"> of the Evidence Act ( I of 1872). A confession made to a police-patel is
ISnvof inadmissible i" evidence Queen- Empress v. Dhima, I. L. R., 17 Bom., 485
(1892).
Confession not Where a confession given in Hindustani was taken before a Subdivisions!
reeorclod in Magistrate, and was recorded by the Court officer in Bengali, that being the Ian
ihSffii'^ci guage of the Court, and where it appeared that the Magistrate himself was a
ndniissibilitj of.' Mtihammadan and it was contended that be must be taken to have been able to
reoord the confession in the language in which it was given, there being no
evidence to the contrary, held, in the absence of such evidence the Court
S. 164.I Powers of Police. 103
should presume that the proceedings of the Subdivisional Magistrate were

conducted in accordance with law, and that in the absence of anything to show
that it was practicable for the officers of his Court to record the statement in
Urdu, it could fairly be held that the Subdivisional Magistrate found tht>t was
impracticable, and adopted the alternative allowed by law of having the con
fession recorded in the Court language. Lai Chanel v. Queen-Empress, I. L. R.,
18Cal., 549 (1891).
An accused, when in custody, made a confession to a Deputy Magistrate, Examination of
in the presence of a sub-inspector, and during an investigation being held into ln'l'"o^fes![!on^-
a case of murder, under the provisions of Chapter XIV of the Criminal Proce- Confession not
dure Code, 1882. The confession was recorded by the Deputy Magistrate in l^™."1"1, ' wWcli
English, though made in Hindi, which the Deputy Magistrate perfectly well It "is "(riven— '
understood and could write. It purported to have been recorded under the Admissibiiitj of,
provisions of section 104, and was in reply to one question which was set out. 111 evldcl,cc
The record bore the signatures of the accused and of the Deputy Magistrate
as well ns the certificate as required by the section. It occupied about five
pages of foolscap. At the trial the Sessions Judge excluded this confession on
the ground that, not having been recorded in the language in which it was
made, and there being no reason why it should not have been so recorded, the
document was inadmissible in evidence He, however, called the Deputy
Magistrate as a witness and admitted in evidence his statement as to what the
accused told him. This evidence, which occupied only a few lines, was to
the effect that the accused tol l him he had committed the murder, and on this
evidence alone the accused was convicted. On appeal—held, that the provi
sions of section 1<!4 re,.d with section 3(54 are imperative as to the language in
which a confession is to be recorded, and that section 533 does not contem
plate or provide for any non-compliance with the law in this respect, and that
therefore, as it was not impracticable to record the confession in Hindi, the
Sessions Judge was right in refusing to admit the document in evidence. Held,
further, that the Sessions Judge erred in admitting the oral evidence of the
Deputy Magistrate as to what the accused told him, as, seeing that he was
acting under the provisions of section 1G4 of the Code, the confession was
matter which was required by law to be reduced to the form of a document,
and therefore, under section 91 af the Evidence Act, no evidence could be
given in proof of such matter, except the document where, as in this case, it
was in existence and forthcoming Held, also, that as the defects in the
record could not be cured under section 533 of the Code, and no secondary
evidence could be given, no proof of the confession could be given, *nd the
accused must bo acquitted. Jainarayan Rat v. The Queen-Empress, 1. L. R.,
17 Cal., 862 (1890).
Certain persons charged with a dakaiti committed at Chawripura, in a Presumptions in
village on the borders of Gwalior, of having gone over into Gwalior territory, respect of record
were arrested and brought before the Magistrate of Bhind in Gwalior. That LcSwion0""
officer recorded their statements, attesting each statement in the following made before. and
words:--" I believe that this confession was made without threat or coercion, anil I''?— '1 J!'-v' a
..it was made, .in my presonce and, to. my ,hearing,
. ™ , . ' it,
.. Judicialomceriu
lhe person making a Nat ve State.
having heard it read out to him, stated it as correct. It contains a full and [jow Iar odmiaai-
true account of the statement made by him." Each statement also bore the (iithe* Om'rts'of
mark (by way of signature) of the person by whom it purported to have been British India.
made. Subsequently these persons were handed over to the British authorities
and were tried by the Court of Session, who rejected the confessions above
referred to as inadmissible in evidence. The accused having appealed to the
High Court, it was held that each of the confessions recorded in the manner
above described was admissible in evidence, certainly under section 80 of the
Evidence Act, and probably under section 74 of that Act, as against the
person by whom it was made. Queen-Empress v. Sundar Singh. I, L. R., 12
All., 695 (1890).
204 Powers of Fo/ice. [Chap. XIV.
Defect iiicoiifea- An accused, iii custody at the time, made to a Magistrate in Calcutta, in
Acul^f w"1)0- "ie course °f a police investigation held in Calcutta, a statement confessing
Presidency that he had murdered his father. The accused spoke and understood English
Jratio"s j,',"™*'1" ?IM' ",c Magistrate questioned him in English, and was answered sometimes
m English and sometimes in Bengali ; whenever the answers were given in
English they were so taken down, when in Bengali they were written down in
English and read over to the accused in that language, who accepted the English
as heing the meaning of that which he had stated, and signed the document
in the presence of the Magistrate who affixed the usual certificate thereto. In
taking this confession, the Magistrate purported to have acted under sections
164 and 304 of the Criminal Procedure Code, 1882. At the trial, subsequently
to the admission of the confession in evidence under section 80 of the Evi
dence Act, the Magistrate w as called as witness and deposed to the above facts
with reference to the language in which the confession was taken and the
mode in which it was recorded : held, on a reference to a Full Bench as to
whether the confession inadmissible in evidence by reason of some of the
answers having been given in Bengali but recorded in English, that the pro
visions of section 164 of the Code had no application to statements taken in
the course of a police investigation made in the Town of Calcutta, and that
consequently sections 304 and 533 had no application : Held, nevertheless, that
the document was properly admitted upon the evidence of the Magistrate under
the provisions of section 2^ of the Evidence Act. Semble.—That the pro
visions of section 104, as read with section 304, would not be complied with
where answers made by an accused to a Magistrate in one language are taken
down in another, unless it could be shown that it was impracticable to have
taken down the answers in the language in which they were given, and
further, that there would be grave doubt if such a defect could be cured by
section 533. Queen-Empress v. Xilmadhub Milter, I. L. 1!., 15 Cal., 5!'5
(1888).
Confession of on It is not necessary that the English memorandum referred to in para. 3
accused person— 0f section 304 of the Criminal Procedure Code, 1882, should be made in
inissihinty of respect of confessions recorded under section 104, as the manner in which
confession in— such a confession is to be recorded under the provisions of that section is
!i"»"'-'°".M"!no-
r"mTmnmCia° cused û"y Hetperson
out 'n was
l'le ^ret two Pllra8-
recorded before°fa sect'on 304. A confession
Deputy Magistrate of clerks,
by one of his an ac-
English by under the provisions of section 104 of the Code, while the case was under
Mnifintmtc. investigation by the police. No English memorandum of the nature referred
to in section 304 was made by the Deputy Magistrate. A further confession
was recorded by the Magistrate under tin; provisions of section 304 while
the case was being heard before him. Both confessions were recorded in
narrative form, and the questions and answers were not taken down. At the
trial before the Sessions Judge both confessions were put in evidence, and
no evidence was given under the provisions of section 533 of the Code, that
the accused duly made the statements recorded. The accused was convicted
mainly on the strength of the confessions. Held, upon the authority of the
decision in Tilu Maya v. The Queen, that as the accused was not prejudiced
by the questions anil answers not being recorded, it was unnecessary for the
Judge to take evidence under section 533, and that the conviction based on
the confessions must be upheld. Fekoo Mahto v. The Empress, I. L. P., 14
Cal., 539 (1887).
Confession- The Deputy Magistrate of Malabar, purporting to act under the provisions
Improper rxa- of the Mapilla Act (Madias Act XX of 185'J), recorded a statement in the
"'i"tt|i0V°f"l>" nat;u,"u °f a confession made by V, who was under arrest on suspicion of
VlnJri«trato- being concerned in a Mapilla outrage. This statement, which was made in
Kecord rejected. Malayalam, was recorded in English iu the form of a narrative and was
signed by the Magistrate only. The same Magistrate shortly afterwards,
purporting to act under the Code of Criminal Procedure, 1882, before any
evidence was recorded against V, examined liim as to tliift statement which
whs read over and translated to him. In answer to questions, V admitted
that he had ma le it voluntarily. Tliis examination was recorded according
to the provisions of section 364 of the Code. After other evidence was re
corded, V retracted his statement. He was committed to the Sessions, tried
and convicted mainly on his own recorded statement and examination. ' The
Deputy Magistrate was examined as a witness and stated that the statement
recorded by him was ma le by I' and was correctly recorded and was made
voluntarily, field, that the record of the statement made by V to the Deputy
Magistrate was not admissible in evidence against V. Per Parker, J. —The
provisions of section lf>4 of the Code arc imperative, and section 533 will not
render a confession admissible where no attempt has been made to conform
to the provisions of the former section. If the confessional statement of V
was recorded by the Magistrate in his executive capacity, it was not receiv
able in evidence under section 80 of the Evidence Act. The action of the
Magistrate in examining V as to his confessional statement before there was
any legal evidence on the record against him was illegal and, therefore, the
record of such examination could not be used in evidence against V. Inas
much as the record of the statement of V was not admissible, secondary
evidence thereof could not be given. Queen- Empress v. Viran,\. L. I!., V
Mad., 224 (188C).
A statement taken by a third-class Magistrate under section Ki4 of the llv „
Codeof Criminal Procedure, 1882, such Magistrate not having authority to carry Marintrnlc -
on the preliminary inquiry in the case, is not evidence in a stage of a judicial Kvfclence Jn-
prococding within the meaning of sections 191 and 193 of the Penol Code, SSiS-iivuSTSSi
such that, wdien the statement is contradicted afterwards before the Mugis- evidence.
Irate having jurisdiction and exercising it in the preliminary inquiry, it will
form a sufficient basis for an alternative charge of giving false evidence in fl
judicial proceeding. Queen- Empress v . Rharma Ilin Xingajtpa, I. L. 1!., 11
Bom., 702 (188<i).
A conviction of a person who is tried jointly with other persons for the Contention by
same offence cannot proceed merely upon the uncorroborated confession of one "'.'^"J iî"'
of such other persons. Where the accused was convicted of house-breaking jointly tor the
by night with intent to commit theft, and the only evidence against him was "line offence—
the confession of a fellow-prisoner, and the fact that he pointed out the stolen Corrol,on,lio,u
property some months after the commission of the offence,—Field, tint the
mere production of the stolen property by the accused was not a sufficient
corroboration of the confession of the other prisoner. Queen-Enqtress v. Doso
Jira, I. L. U., 10 Bom., 231 (1885).
A Deputy Magistrate lxjforc taking down a statement from a person Confeiwioii—In-

brought before him by the police, noted on the paper on which he was about dueemont to
to take down the statement, the following words which, after excluding the con
police-officers from his presence, he had verballv addressed to the accused : —
"After excluding from my presence the police -officers who brought him.
I warn the accuse 1 that what he would say would go as evidence against him:
so he had better tell the truth." Held, that the use of such language was
calculated to hold out an inducement to the prisoner to confess, and that such
a confession was therefore inadmissible in evidence against him. Queen-
Empress v. Uzeer, I. L. It., 10 Cal., 775 (1884).
A village Magistrate is not a police-officer, and therefore a confession Confession )«-

ma le to a village .Magistrate is not inadmissible in evidence by reason of r°.rc ■ ''i'1"*''
section 25 of the Evidence Act. The Qii'en-Empress v. Sama AW. I I> I{ Miw,,"'"le-
7 Mad., 287 (1883).
Powers of Police. [Chap. XIV.
Warrant of The signature of a Magistrate to a warrant of commitment under section

8?™™turcellor 303 of the Co(le of Clim"ial Procedure, 1872, should not be affixed by a
Mnlfistr.Ate - stamp. In summary trials under the provisions of Chapter XVIII, the record
Summary trial— in non-appealable cases and the judgment in appealable cases must be written
nwnt^Siinature by tne Magistrate. A Magistrate in such cases is not authorised to depute that
-- i'istrict Ma- duty .to a clerk, nor to affix his signature to the record or judgment by a
Bistrate-Siim- stamp. Where a head constable of police of many years' service was charged
Lerious offence. w'th criminal intimidation with a view to prevent a person from giving evi
dence against serious offender, and the District Magistrate tried the case
summarily under the special power given by section 223 of the Code : Held,
that the case ought not to have been tried summarrilv. Subramanya Ayyar
v. The Queen, I. L. Ii., 6 Mad., 39G (1883).
Confession- On a certain day a confession by an accused person was recorded by a
Code of 1872 and Magistrate, and on the next day the same Magistrate, having jurisdiction to
the Code of 188J. (j0 so^ exau,jne(j the witnesses for the prosecution and eventually committed
the accused. Held, following Empress v. Anunlram Singh, that such
confession, having been made to a Magistrate competent to hold, and who
actually I hen was holding, an inquiry preliminary to committal, must be regard
ed as falling within section 193 of the Criminal Procedure Code, 1872, or
section 342 of the Code of Criminal Procedure, 1882, and as such governed by
the reservations contained in section 346 of the former Code or section 364
of the latter Observations on sections 342 and 364 of the Criminal Procedure
Code, 1882. Empress of India v. Yakub Khan, I. L. R., 5 All., 253 (1883).
Confession of an The confession of an accused person was recorded in a simple narrative
V nMi1 ,1mo"f form instead of in the shape of question and answer as required by the Code
the"m'n<Tu»pd- °^ Criminal Procedure, 1872, section 346. There was nothing in the character
Question atni of the confession, or in the circumstances of the case, to lead to the inference
Rwordinit tna' ,nc accusc(' na0< ucon prejudiced by the error. Held, that the error did
examination - not affect the admissibility of the statement in evidence. The Empress v.
statement of
accused. Mtinehi Sheikh, I. L. 1!.. 8 Cal.,1 G16 (1882).
x 1
Confession- If the certificate required by section 122 of the Code of Criminal Proce-
Ccrtincatr- dure, 1872, that a confession is voluntarily made is not recorded by the
Inadmissible. Magistrate at the time the confession is made, or, at any rate, on the day it is
reduced to writing-, the confession is bad and inadmissible in evidence. To
render the statement of one person jointly tried with another for the same
offence liable to consideration against that other, it is necessary that it should
amount to a distinct confession of the offence charged. Empress v. Daji
Narsit, I L. B., 6 Bom , 288 (1882).
TOmmi'imc i"- accusC1' wno was charged with murder, not being found, the witnesses
Commitment on were examined under section 327 of the Code of Criminal Procedure, 1872, in
evidence taken his absence. The accused was subsequently arrested and committed on the
Jccused? °e of strength of the evidence taken in his absence. Before the Sessions Cour1 he
pleaded not guilty. Held, that the prisoner having been put upon his trial
and having pleaded, the commitment could not be quashed. Held, that, if in
the course of a trial, the Sessions Judge should be of opinion that the prose
cution has not laid a proper basis for the reception of evidence in the absence
of the accused, his proper course is to adjourn the trial under section 264 of
the Code, ►nd then, under section 351, summon such witnesses as lie may
deem material. Semble.—The mere absence of questions in the record of a
prisoner's statement do not render it inadmissible. Empress v. Sagambur,
12 Cal. L. K., 120 (1882).
Confession— ^ prisoner, charged together with others with being a member of an
Admission -Kra- unlawful assembly, made a statement before the committing Magistrate
mw«-™ud«rt" imPucat.ing his fellow prisoners and another person. He subsequently with
drew this statement, and made another, in which he endeavoured to exculpate
himself. Held, that this statement was not evidence against the other
prisoners un:ler seetion 30 of the Evidence Act. It was nut a confession, nor
did it nmouut to any admission by the prisoner that he was guilty in any degree
of the offence charged ; but it was simply an endeavour on his part to explain
his own presence on the occasion in such a maaner as to exculpate himself,
and any mention made by him in such a statement of other persons having
been engaged in the riot, was altogether irrelevant, and not evidence against
them. At a trial before a Sessions Court, the Judge, on the cxamination-in-
chief of the witnesses for the prosecution being finished, questioned the
witnesses at a considerable length upon the points to which he must have
known that the cross-examination would certainly and properly be directed.
Ilelfl, that such a course of procedure was irregular, and opposed to the
provision of section 138 of the Evidence Act. It is not the province of the
Court to examine the witnesses, unless the pleaders on cither side have omitted
to put some material question or questions ; and the Court should, as a general
rule, leave the witnesses to the pleaders to be dealt with as laid down in
section 133 of the Act. Noor Biix Kuzi v. 77c Empress., I. L. R., 6 Cal.,
279 (1880).
When a confession is mule to a Magistrate by an accused person during jj'"^^'"!^
an enquiry held previously to the case being taken up by the committing olti- oonHil?
cer, and by an ufficcr acting merely as a recording oflicer, it must be recorded
in strict accordance with the provisions of sections 122 and 346 of the Code
of Criminal Procedure, 1872. If the provisions of those sections have not
been fully complied witli by the recording officer, the Court of Session may
take evidence that the accused person didy made the statement recorded ; but
a Court of Session is not at liberty to treat a deposition sent up with the record
and made by the recording officer before the committing otticer to the effect
that the accused person did in fact duly make before him the statement re
corded as evidence of that fact. In such a case the recording officer must
himself be called and examined by the Court of Session, except in cases in
which the presence of the recording officer cannot be obtained without an
amount of delay or expense which, under the circumstances of the case, the
Court of Session considers unreasonable. Xoshai Mislri v. The Emprttu
I. L. R., 5 Cal., 1)58 (1880).
A confession recorded by a Magistrate, who afterwards conducts the Con(e»»ion-Ho«r
enquiry preliminary to committal, and has jurisdiction to do so, is to be treat- 10 ,R' rci'cm,t,l-
ed as an examination under section 193 of the Criminal Procedure Code, 1872,
and not as a confession recorded under section 122, notwithstanding that the
prisoner may have been brought before the Magistrate before the conclusion
of the p dice investigation. To such a confession consequently the provisions
of the last paragraph of section iUt> apply. Section 122 of the Code contem
plates and provides for cases in w hich confessions are recorded by a Magistrate
other than the Magistrate by whom the case is enquired into or tried. The
Empreti v. AnmUnim Singh, I. L. R., 5 Cal., 954 (1880).
When arraigning an accused, and before receiving his plea, the Court Xeccssitj forci-
should be careful to insure the explanation of the charge in a manner suffi- {^'''ir!!u,£ji*!/re
ciently explicit to enable the accused to understand thoroughly the nature of Statement to
the charge to which he is called upon to plead. It is not necessary that a Mnwxlmte m
statement made to a Court by an accused in a foreign language should be £1™*" ""*
taken down in the words of that language. The language in w hich the state
ment is conveyed to the Court by the interpreter is the language in which it
should be recorded, 'lhr, Emprtts v. Vaimbiltr, I. L. R., 5 Cal., 826 (1880).
A confession does not become irrelevant merely because the memorandum confession- -Mc-
reqnired by law to be attached thereto by the Magistrate taking it has not momi'idum not
been written in the exact form prescribed. Empret* of India v. Bhairon '■» exwt form.
Singh, I. L. R., 3 All.. 338 (1880).
Confession. A confession made by an accused person before a Magistrate who has
jurisdiction to deal with the matter to which it relates, may be made the com
mencement of a trial or inquiry under Chapter XV of the Code of Criminal
Procedure, 1872, and be treated as a confession under section 340, whether
or not the case be still under the investigation of the police. Per curiam.—
The object of section 122 is to enable any Magistrate, other than the Magis
trate by whom the case is to be tried or inquired into, to record a confession
promptly. Krishno Monee v. The Empress, C Cal. L. II., 280 (1880).
Confession. Section 122 of the Code of Criminal Procedure, 1872, does not apply to a
confession recorded by a Magistrate acting under Chapter XV or Chapter XVII,
but to a confession made by a Magistrate other than the Magistrate by whom
the case has to be enquired into or tried, and to a confession made' during,
or before the commencement of, an investigation by the police. In re
Llehiri Hajdi, 5 Cal. L. R., 238 (18";>).
Confession. A defect in a confession taken under section 122 of the Code of Criminal
Procedure, 1872, cannot be remedied, as in the case of an examination of a
prisoner under section 34(5, by evidence taken at Sessions. Empress v. Hurt
Kisto Bismts, 5 Cal. L. R., 201) (187'.)).
V'ondarv'llev'i'f When the confession of a prisoner under section 122 of the Criminal Pro
licide of confes- cedure Code, 1872, was not taken in the manner provided by section 346, and
sion-Confos- was, therefore, defective,— held, that the evidence of the recording officer, that
hVn'eooislmioe11 suc'1 confession was actually made, was inadmissible to remedy the defect,
with section .no In re Empress v. Munoo Tumoolee, I. L. I!.. 4 Cal., 696 (1K78).
of the Code.
Power ol Mmtis- Section 122 of the Code of Criminal Procedure. 1H72, authorizes a Magis
trate to record trate to record the statement of a person who appears before him as a witness,
aperson
statement of a ag
, wcj|
T T .ls„ 0,.onf,.ssion of a person accused of an offence. Empress v. Mai-
not in- „ ,,„,,0,L ■*
i-nsod of mi Ira, I. L. Ii., 2 Bom., <>43 (18/X).
offence.
Confession- Where a Magistrate in taking the confession of a prisoner under section
Mauistriite- 122 of the Criminal Procedure Code, 1872, omits to take it in writing, with
AcUonsns? *'10 formalities prescribed by section 346 of that Code, such confession is not
section i , the absolutely inadmissible in evidence. Evidence may betaken to show that the
is0w!iiiner,ltfve' Pr'8oner l'u'.V made the statement recorded. A village munsif in the Madras
Presidency is a " Magistrate " within the meaning of section 20 of the Indian
Evidence Act, 1872. The word "include" in clause 13 and other clauses of sec
tion 1 of Act I of 1H08 is intended to be enumerative, not exhaustive. The
Empress v. Ramanjiyyu, I. L. I!., 2 Mad., 5 (1878). "
\dinissiliiliiy in ^ne prisoner, on his arrest, made a statement in the natureof a confession
evidence of con- which was reduced into writing by one of the inspectors in whose custody
officer' ~i'lsoâ t'lc P"8oner wa8i iU"' subsequently signed and acknowledged by the prisoner
Miuclstrnte*- '» the presence of the Deputy Commissioner of Police at the police office,
%puty Com- the Deputy Commissioner receiving and attesting the statement in his capacity
PoMee''0in Cal- lls Magistrate and Justice of the Peace. At the trial of the prisoner at the
cutta. Criminal Sessions of the High Court, this statement was tendered iu evidence
against him and admitted by the Judge, who over-ruled an objection on behalf
of the prisoner that, under section 25 of the Evidence Act. it was inadmissible.
On a case certified by the Advocate-General under clause 26 of the Letters
Patent, held, that the confession was, under section 25 of the Evidence Act.
not admissible in evidence. Per Garth, C. J.—Section 20 of the Evidence
Act is not to be read as qualifying the plain meaning of section 25. In con
struing section 25 the term "police-officer " is not to be read iu a technical
sense, but in its more comprehensive ami popular meaning. Per curiam. —
Section 167 of the Evidence Act applies as well as to criminal as to civil cases.
PerGABTii, C. J., (Pontifex, J., doubling). -The Court which under that sec
tion is to decide upon the sufficiency of the evidence to support the convic
tion, is, in a case coming baforc th) Court u.i ler so.tiou 20 of the Letters
Patent, the Court of review, and not the Court below. Such decision is to be
come to on being informed by the Judge's notes, and if necessary by the
Judge himself, of the evidence adduced at the trial. Per curiam.—Apart
from section 1(57, the Court has power, in a case under clause 28 of the Letters
Patent, to review the whole case on the merits, and affirm or quash the con
viction. The Queen v. IJurribole Chancier Ghoie, I. L. R., 1 Cal., 207 (1876).
A confession recorded under section 122 of the Code of Criminal Proce- jfemorandiun-
dure, 1872, to be admissible in evidence, must not only bear a memo- Certificate,
randum that the Magistrate believed it to have been voluntarily made, but also
a certificate, under section 346 of the Code, that it was taken in the Magis
trate's presence and hearing, and contains accurately the whole of the
statement made by the accused person. No oral evidence can be received to
prove the fact of the confession, if the confession itself be inadmissible.
Reg. v. Shivya, son of Bhogowa, I. L. R., 1 Bom., 219 (1876).
Section 122 of the Code of Criminal Procedure, 1877, which requires a Confession -
Magistrate to certify on a confession his belief that it was voluntarily made, Certificate-
does not apply to the case of a confession taken by a Magistrate who is
actually investigating the case, and examining the witnesses preparatory to
commitment ; but to a case where some other Magistrate takes a confession,
and forwards it to the Magistrate by whom the case is inquired into or tried.
The Qusen v. Jetoa, 23 W. It., 10 (1875).
A confession, not taken in the form of question and answer, and not Confession --
authenticated by the Magistrate's endorsement as to its accuracy, is inadmissible jjj"f -Uv' jirrv
in evidence, even though no objection should be made to its reception. If an Admission of
abettor of a crime is, on account of his presence at its commission, to be ^"/^lêtrhii
charged under section 114 of the Penal Code as principal, his abetment must
continue down to the time of the commission of the offence If he distinctly
withdraws at any moment before the final act is done, the offence is not
committed with his continuing abetment. The confession of a person who
says he abetted a murder but withdrew before the actual perpetration of that
murder by his associates, cannot he used as evidence against those associates,
though the person confessing is tried with them jointly on a charge of murder.
If, in a case tried by a jury, the High Court finds that inadmissible evidence
has been received, but that, after setting it aside, there is no other evidence
on the record on which the jury may find a verdict of guilty, the High Court
may reverse the conviction and sentence, and order a new trial. Reg. v. Am-
rila Gorinda, 10 Bom. H. C, 497 (1873).
The confession of an accused person, taken by a Magistrate having 110 Knsijrned con-
jurisdiction to commit or try him, is imperfect, if not signed by the accused lfMoÔn?™vi-
pcrson or attested by his mark, and is inadmissible in evidence. The term denee to prove
" Preliminary Inquiry" in the final clause of section 346 of the Code of Criini- «n»;Ktied con-
nal Procedure, 1872, means such inquiries as are the subject of Chapters XIV ess10"-
and XV ; and, therefore, that clause does not apply to confessions recorded un •
der section 122, which refers to an inquiry not during a trial or one held with a
view to committal, but an inquiry for the purpose of forwarding confessions,
when recorded, to the Magistrate by whom the case of the accused person is
inquired into or tried. Consequently, when a confession taken under section
122 is inadmissible in evidence, oral evidence to prove that such a confes
sion was made or what the terms of that confession were, is inadmissible also.
Reg. v. Ratan, 10 Bom. H. C, 166 (1873).
A prisoner charged with murder confessed his guilt before the Ala- Confession un-
gistrate, who recorded the confession under section 122 of the Code of attested inad-
Criminal Procedure, 1872, but omitted to append lo the record the prop r "„ndary~fvi-
certificate, or obtain the attestation of the accused by his signature or murk, dence to prove
as required by section 346. The prisoner was finally committed to the Ses- ""attested con-
sions Court for trial. Held, that the omissions could not be rectified under tessl0"'
14
2T0 Powers of Police. [Chap. XIV.
any authority contained in the last clause of section 346 by taking the
evidence of the recording officer that the prisoner duly made the statement
recorded, and that the confession was not admissible in evidence. The Em
press v. Munnoo Panioli, 4Cal. L. R., 137 (1870).
Son'^token Tiie W01'Js "a Magistrate" in section 149 of the Code of Criminal Pro-
hefore Macis- eedure, 18G1, mean " any Magistrate," and not merely " the Magistrate hav-
tr»te not.Uavinjt jng jurisdiction." The practice of taking prisoners before Magistrates not
try! n hav ing jurisdiction in the case, for the purpose of getting a confession record
ed, is not generally desirable, but such a confession is legally admissible in
evidence when duly proved. Reg. v. Vahala Jetha, 7 Bom. H. C, (Crown
Cases) 56 (1870).
poUceôfflcer 165. (1) Whenever an officer in charge of a police-
station, or a police-officer making an investigation, considers that
the production of any document or thing is necessary to the con
duct of an investigation into any offence which he is authorised
to investigate, and there is reason to believe that a person to
whom ;i summons or order under section 94 has been or might be
issued will not or would not produce such document or thing
according to the directions of the summons or order, or when
such document or thing is not known to be in the possession of
any person, such officer may search, or cause search to be made,
for the samf), in any place within the limits of the station of which
he is in charge, or to which he is attached.
(2) Such officer shall, if practicable, conduct the search
in person.
(-3) If he is nnable (o conduct the search in person, and
there is no other person competent to make the search present at
the time, he may require any officer subordinate to him to make
the search, and he shall deliver to such subordinate officer an
order in writing, specifying the document or thing for which
search is to be made, and the place to be searched ; and such sub
ordinate officer may thereupon search for such thing in such place.
[4) The provisions of this Code as to search-warrants shall,
so far as may be, apply to a search made under this section.
[Duties of [23 (Act V of 1861). It shall be the duty of every police-officer
police-officers.] t0 0Dev an(j execute all orders and warrants lawfully issued to
him by any competent authority ; to collect and communicate intelli
gence affecting the public peace ; to prevent the commission of offences
and public nuisances ; to detect and bring offenders to justice, and to
apprehend all persons whom he is legally authorized to apprehend, and
for whose apprehension sufficient ground exists : and it shall be lawful
for everv police-officer, for any of the purposes mentioned in this section,
without a warrant, to enter and inspect any drinking-shop, gaming
house or other place of resort of loose and disorderly characters.]
[Information as [125 (Act I of 1872). No Magistrate or police-officer shall be
to ^ commission compelled to say whence he got any information as to the commission of
Ss. 165-167.] Powers of Police. 211
any offence, and no revenue-officer shall be compelled to say whence he

got any information as to the commission of any offence against th«
public revenue.
Explanation.—" Revenue-officer " in this section means any officer
emp loyed in or about the business of any branch of the public revenue.]
166. (.1) An officer in charge of a police-station may re- ^êo^'icl0-
quire an officer in charge of another police-station, whether station may re
in the same or a different district, to cause a search to be made in ?ssuo "warcii
any place, in any case in which the former officer might cause MrwTant
such search to be made within the limits of his own station.
(2) Such officer, on being so required, shall proceed accord
ing to the provisions of section 165, and shall forward the thing
found, if any, to the officer at whose request the search was made.
167. (1) Whenever it appears that any investigation under inrartigatioii'eM
this chapter cannot be completed within the period of twenty-four ™',t^Sn*twen-
hours fixed by section 61. and there are grounds for believing tj-four hours,
that the accusation or information is well-founded, the officer in
charge of the police-station shall forthwith transmit to the nearest
Magistrato a copy of the entries in the diary hereinafter prescribed
relating t > the case and shall at the same time forward the accused
(if any) to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole. If he has not jurisdiction
to try the case or commit it for trial, and considers further deten
tion unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction.
(3) A Magistrate authorising under this section detention in
the custody of the police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other than the
District Magistrate or Subdivisional Magistrate, he shall forward
a copy of his order, with his reasons for making it, to the Magis
trate to whom he is immediately subordinate.
The right construction of section 167 of the Code of Criminal Procedure, remand of pri-
1882, is that in proceedings before the police under Chapter XIV, the period •»"er^( '"i^JJ"*
of remand cannot exceed in all fifteen days, including one or more remands. i 0 1,0 ce'
Queen-Empress v. Engadu, I. L. R., 11 Mad., 98 (1887).
Per Glover, J. Where a sub-inspector of police is charged with having
detained prisoners for more than 24 hours, it is not necessary for the Crown t° teniioil'ln '
prove that he detained them with a guilty knowledge, as section 124 of the hajut—Act X
Code of Criminal Procedure, 1872, imperatively lays down that accused persons *ect"wi
are on uo account to be detained beyond that time except under special order of
the Magistrato, which was not obtained in this caie. The Queen v. Rasooram
Das, ID W. B., 36 (1873).
Wrongful con- In no case is a police-officer justified by section 152, Code of Criminal

flnement. Procedure, 1861, in detaining a person for a single hour except upon some
reasonable ground justified by all the circumstances of the ease. Queen v.
Suprosunno Ghotaul, 6 W. B., 88 (1866).
Detention of Held, that the order of a Magistrate sanctioning the detention by the polios
JSliJ.âot-"16 °^ an 0CCU8e,l per.son for an indefinite period is illegal. At the expiration of
maud, twenty-four hours from the time of arrest, the accused must be brought before
a Magistrate, who can then remand for a period not exceeding fifteen days,
under section 224 of the Criminal Procedure Code, 1861. No remand without
a hearing can last for a longer period. Beg. v Surkya Valad Dhaku, 5 Bom.
H. C, 31 (1868).
Detention ol A Magistrate onlv, and not a Sessions Judge, has power to try cases under
accused. section 29, Act V of 1861. Section 152 of the Code of Criminal Procedure
does not apply to cases in which there has not been a continuous detention of
twenty-four hours. Indrobeer Thaba (appellant), 1 W. B., 5 (1864).
Report of inves- 168. When any subordinate police officer has made any
onUnate^'ioe" investigation under this chapter, he shall report the result of such
officer. investigation to the officer in charge of the police-skition.
Occurrence-Re- by the Full Bench (Subramania Ayyar, J., dissentiente).—Reports
ports—Chaiye- made by a police-officer in compliance with sections 157 and 168 of the
of aifoccused to Criminal Procedure Code, 1882, are not public documents within the mean-
copies of, before mg of section 74 of the Indian Evidence Act, consequently an accused person
tr^—Criminal is not entitled, before trial, to have copies of such reports. Held by Collins,
se?tSoii8i57?Tc8, J-> an^ Benson, J.—The same rule applies to reports made by a police-officer
m-Public do- in compliance with section 173 of the Code. Ilel I by Shephard and Sdb-
E1vidt'nceInAcT RA,,ANIA Ayyar, JJ.— Reports made by a police-officer in compliance with
section 74— 'section 173 of the Code are public documents within the meaning of section
^'K^tô inspect 74 of the Indian Evi lenco Act, and consequently an accused parson, being
lndinnVEri§enee a Person interested in such documents, is entitled, by virtue of section 76 of
Act, section 76. the Indian Evidence Act, to have copies of such reports before trial. Queen-
Empress v. Arumugam,!. L. R., 20 Mud., 189 (181)6).
cusraiwiien "vi- 169. If, upon an investigation under this chapter, it ap-
dence deficient, pears to the officer in charge of the police-station that there is not
sufficient evidence or reasonable ground of suspicion to justify
the forwarding of the accused to a Magistrate, such officer shall,
if such person is in custody, release him on his executing a bond,
with or without sureties, as such officer may direct, to appear, if
and when so required, before a Magistrate empowered t > take
cognizance of the offence on a police-report and to try the accus
ed or commit him for trial.
For form of bond and bail-bond on a preliminary inquiry before
a police-officer, see schedule V, No. 25.
Case to be sent 17<>- V) If» uPon an investigation under this chapter, it
whCTêvidencc aPPears *° *ne officer in charge of the police-station that there is
is sufficient. sufficient evidence or reasonable gr >und as aforesaid, such officer
shall forward the accused under custody to a Magistrate empower
ed to take cognizance of the offence upoua police-rep art and to try
the accused or commit him for trial, or, if the offence is bailable
and the accused is ablo to give security, shall take security from
Ss. 1 68- 1 7 1.] Powers of Police. 213
him for his appearance before such Magistrate on a day fixed and
for his attendance from day to day before such Magistrate until
otherwise directed.
(2) When the officer in charge of a police-station forwards
an accused person to a Magistrate or takes security for his ap
pearance before such Magistrate under this section, he shall send
to such Magistrate any weapon or other article which it may be
necessary to produce before him, and shall require the complain-
aut (if any) and so many of the persons who appear to such officer
to be acquainted with the circumstances of the case as he may
think necessary, to execute a bond to appear before the Magis
trate as thereby directed and prosecute or give evidence (as the
case may be) in the matter of the charge against the accused.
(3) If the Court of the District Magistrate or Subdivisional

Magistrate is mentioned in the bond, such Court shall bo held to
include any Court to which such Magistrate may refer the case
for inquiry or trial, provided reasonable notice of such reference
is given to such complainant or persons.
{4) The day fixed under this section shall be the day where
on the accused person is to appear, if security for his appearance
has been taken, or the day on which he may be expected to arrive
at the Court of the Magistrate, if he is to be forwarded in custody.
(5) The officer in whose presence the bond is executed shall

deliver a copy thereof ta one of the persons who executed it, and
shall then send to the Magistrate tho original with his report.
For form of bond to prosecute or give evidence, see schedule V,

No. 26.
In a case which is made over for investigation to tho police, tho prosecu- Police—RecoR-
tor and his witnesses should be required, under section 151 of the Code of Cri- nizance.
minal Procedure, 1861, to enter into recognizances to attend and give evi
dence. A recognizance binding over an accused person to appear to answer
a charge should specify the particular day on which he should be in attend
ance in Court. The Qtteen v. Pooran Jolaha, 11 W. R., 47 (1869).
The police are not at liberty to bind witnesses over to appear a month Police—Evi-
after date. Remarks on the insufficiency of the evidence in this case to war- dence.
rant a conviction. Queen v. Bheem Munjee, 6 W. R., 52 (1866).
171. No complainant or witness on his way to the Court Complainants

of the Magistrate shall be required to accompany a police-officer, nottobfrûl?8-
ed to accompany
or shall be subjected to unnecessary restraint or inconveni- ê',°™^,rt'8
ence, or required t'j give any security for his appearance othe rthan anampw!tnes£-s
bid
HIS nwn
Own hnnd
wnci •. " not to
ted be subjeo"
to retitraiiit,
Powers of Police. [Chap. XIV.
5SStor°wttI Provided that, if any complainant or witness refuses to attend

wartcdm^ciu- or *° execute a ôn(^ as directed in section 170, the officer in charge
tody. cu*" of the police-station may forward him in custody to the Magis
trate, who may detain bim in custody until he executes such bond,
or until the hearing of the case is completed.
fPublic servant [166 (P. C). Whoever, being a public servant, knowingly disobeys
disobeying law any direction of the law as to the way in which he is to conduct himself
with intent to
cause* ramiY to aS BU(* Pu^'ic servant» intending to cause, or knowing it to be likely
any penon- that he will, by such disobedience, cause injury to any person, shall be
punished with simple imprisonment for a term which may extend to one
year, or with fine, or with both.
Illustration.
A, being au officer directed by law to take property in execution, in
order to satisfy a decree pronounced in Z's favour by a Court of Justice,
knowingly disobeys that direction of law, with the knowledge that he is
likely thereby to cause injury to Z, A has committed the offence defined
in this section.]
172. (/) Every police-officer making au investigation
Diary of pro
ceedings in in> under this chapter shall day by day enter his proceedings in the
vestjuration. investigation in a diary, setting forth the time at which the infor
mation reached him, the time at which he began and closed his in
vestigation, the place or places visited by him, and a statement of
the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police-diaries of
a case under inquiry or trial in such Court, and may use such dia
ries, not as evidence in the case, but to aid it in such inquiry or
trial. Neither the accused nor bis agents shall be entitled to
call for such diaries, nor shall he or they be entitled to see them
merely because they are referred to by the Court ; but, if they are
used by the police-officer who made them, to refresh his memory,
or if the Court uses them for the purpose of contradicting such
police-officer, the provisions of the Indian Evidence Act,* 1872,
section 161 or section 145, as the case may be, shall apply.
rcrosi-eiamina- [145 (Act I of 1872). A witness may be cross-examined as to
oua " atemeiits previous statements made by him in writing, or reduced into writing,
in writing.] an(j relevant to matters in question, without such writing being shown to
him, or being proved ; but if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be called to
those parts of it which arc to be used for the purpose of contradicting
him.]
"Refrenhing me- [159 (Act I of 1872). A witness may, while under examination,
refesh his memory by referring to any writing made by himself at the
time of the transaction co ncerning which he is questioned, or so soon
afterwards that the Court considers it likely that the transaction was at
that time fresh in his memory.
• Act No. I ot 1872.
The witness may also refer to any such writing made by any other
person, and read by the witness within the time aforesaid, if, when he
read it, he knew it to be correct.
Whenever a witness may refesh his memory by reference to any gJ^^J
document, he maj', with the permission of the Court, refer to a copy of document to re-
such document : "Provided the Court be satisfied that there is sufficient ircsh memory.]
reason for the non-production of the original.
An expert may refesh his memory by reference to professional trea
tises.]
[160 (Act I of 1872). A witness may also testify to facts men- fTcrtimony^to
tioned in any such document as is mentioned in section 159, although document men-
he has no specific recollection of the facts themselves, if he is sure that ttonod in section
the facts were correctly recorded in the document.
Illustration,
A book-keeper may testify to facts recorded by him in books re
gularly kept in the course of business if he knows that the books were
correctly kept, although he has forgotten the particular transactions
entered.]
[1G1 (Act I of 1872). Any writing referred to under the pro- [Right of ad-
visions of the two last preceding sections must be produced, and sliown witon?^!idto
to the adverse party, if he requires it ; such party may, if he pleases, refresh memo-
cross-examine the witness thereupon.]
A Sessions Judge, although lie has power in any particular case which Police diaries-
is before him to send for the police diaries connected with the case, if lie IS? fS'lf?, ill
thinks it necessary to peruse them, has no authority to issue a general order contnin—State-
that in every case committed for trial to the Court of Session, and in every m*Stl Ejection
criminal appeal, the police diaries shall be submitted to the Court siinultane- 161 of Act X ot
ously with the Magistrate's record of the case. Such an order is illegal. In 1882-Wheihor
no case is an accused person entitled as of right to a copy of any statement JJHy "wm^'art
recorded by a police-officer in the special diary prepared under the authority of special diary,
of section 172 of the Code of Criminal Procedure, 1882. The special diary
may be used by the Court to assist it in the inquiry or trial by suggesting
means of further elucidating points which need clearing up and which are
material for the purpose of doing justice between the Crown and the accused ;
but entries in the special diary cannot by themselves be taken as evidence of
any date, fact or statement therein contained. The special diary may also
be used by the Court for the purpose of contradicting the police-officer who
made it, and the special diary may be used by the police-officer who made it,
and by no witness other than such officer, for the purpose of refreshing his
memory. If the special diary is used by the Court to contradict the police-
officer who made it, or by the police-officer wdio made it to refresh his memory,
the accused person or his agent has a right to sea that portion of the
diary which has been referred to for either of these purposes, that is to say,
the accused person or his agent is entitled to see the particular entry which
has been referred to and so much of the diary as in the opinion of the Court
is necessary in that particular matter as to the full understanding of the par
ticular entry so used, but no more. So held by the Full Bench. Per Edqe,
C. J., Knox, Blair, and Burkitt, JJ.—A police-officer investigating 1 case
may lawfully reduce into writing in the special diary the full and unabridged
statement made to him by a person whom he ia examining or has examined,
2 l6 Powers of Police. [Chap. XIV,
under section 161, Act X of 1882, and if lie does so, his record of such state
ment is part of the special diary and is just as much privileged as any other
entry in the diary. All statements made under section 161 of the Code to a
police-officer and reduced into writing by him should be reduced into writing
in the special diary and not elsewhere. Per Banerji, J., and Airman, J.—
Statements recorded under section 161 of the Code by a police-officer making
an investigation were not intended by the Legislature to be entered in the
special diary, and if they are so entered, do not form an integral part of the
diary and are not privileged, but the accused person or his agent is entitled to
see them. A mere summary, however, of facts ascertained by an investigating
officer from persons examined by him, not being a report of their actual state
ments, may properly find a place in the special diary. Queen- Empress v. Mannit,
1. L. It., 19 All., 390 (18'.»7).
Police charge- At the beginning of a trial in the Court of a Presidency Magistrate
lef^lÂ't'x an aPP''C!lt'on was made, on behalf of the accused, for a copy of the
of 1882.' ° police charge-sheet which contained the whole of the prosecution evi
dence as set forth by the police, and extract from, if not copies of, the
police diary. The application was rejected by the Magistrate, field,
that the High Court should not on revision interfere with the order of
the Magistrate. Qiieen-Empress v. Venkataratnam Pantulii, I. L. 1!.. 19 Mad.,
14 (1895).
witross1"'"'8
Ued' °bj^SpoM°c-01 cedure,
Tlle1882,
l)liv',eS°
does £ivcn l,y section
not extend 172 of taken
to statements the Code
under ofsection
Criminal
161, Pro-
but
officers investi- recorded in the diary made under section 172. Sheru Sha v. The Queen-
Sbgo- XlVof Empress I. L. P., 20 Cal, 642 (1893).
B — Statements of witnesses recorded by a police-officer while making an
wmrcsscs'rcoor^ investigation under section 161 of the Criminal Procedure Code, 1882,
ded by police- form no portion of the police diaries referred to in section 172, and an ac-
offlcers investi- cused person on his trial has a right to call for and inspect such state-
Chnnter XTVof ments and cross-examine the witnesses thereon. Bikao Khan v. The Queen-
the Code-Bight Empress, I. L. R., 16 Cal., 610 (1889),
of accused to
spect" anCl A statement taken down in the course of a public investigation by a
- police-constable under section 161 of the Criminal Procedure Code, 1882, is
Police-officers not evidence at any stage of a judicial proceeding. A police-constable taking
section 161— er down a statement under section 161 of the Code is not a Judge, nor is the place
Prosecution for where he officiates a Court. His sanction is, therefore, not necessary, under
dence '"'to ""a BOtt'on 195 °£ tue Code, to a prosecution for a false statement made to him,
police-officer, whether the charge be framed singly or alternatively. Queen-Empress v.
Ismail Valad Fataru, I. L. B., 11 Bom., 659 (1887).
Evidence— In giving evidence a police-officer may refresh his memory by referring
fvVtMesse"lSto°tt to cwcuments which he has, under section 119 of the Code of Criminal Pro-
police-officer cedure, 1872, reduced into writing statements cf persons examined by him
during an Jn- during an investigation, but the documents themselves cannot be used as evi-
iSfreshin'i dence, and a Judge should not read such documents to a jury in order to
memory—Modi- point out discrepancies between the evidence and previous statements of the
evidence of—' "^vitnosnes. The evidence of a medical man who has seen, and has made a
Opinion of post-mortem examination of the corpse of the person touching whose death
expertshow the inquiry is, is admissi ble, to prove the nature of injuries which he
niiiung at Ses- observed ; and, secondly, as evidence of the opinion of an expert as to the
■ions trial medi- manner in which those injuries were iufiicted, and as to the cause of death,
has" been8 W''- ^ "'edieal man who has not seen the corpse is only in a position to give evi-
niined before dence of his opinion as an expert. The proper mode of eliciting such evidence
the Magistrate is to put to the witness hypothetically the facts which the evidence of the
ciamhTati'ou"' °"101' ncss,cs attempts to prove, and to ask the witness's opinion on those
reports. facts. Section 323 of the Code does not in any way preclude the Judge at a
Sessions trial from calling and examining the medical witness who has been
examined before the Magistrate, and in every case in which the deposition
taken by the Magistrate in essentially deficient or requires further elucidation,
such witness should be called and examined by the Sessions Judge. A medi- .
ial man in giving evidence may refresh his memory by referring to a report
which he has made of bis post-mortem examination, but the report itself con-
not be treated as evidence, and no facts can be taken therefrom, lioghuni
Shiyh v. The Empress, I. L. R., 9 Cal., 455 (1882).
A prisoner on his trial is not entitled to insist that a memorandum made mad^bj-'police-
by a police-officer under the provisions of section 119 of the Code of Criminal officer- Re-
Procedure, 1872, shall, in the course of the examination of such officer, be {^"^ôVy—
referred to by the latter for the purpose of refreshing his memory. The Euqireas Binmiiuition'ol
v. Aali Churn Chunari, I. L. It., 8 Cal., 154 (1881). witness.
173. (V) Every investigation under this chapter shall be Report ofpolice-
completed without unnecessary delay, and as soon as it is cumple- offlcer"
ted, the officer in charge of the police-station shall forward to a
Magistrate empowered to take cognizance of the offence on a
police-. eport a report in the form prescribed by the Local tjovern-
ment, setting forth the names of the parties, the nature of the in
formation and the names of the persons who appear to be acquain
ted with the circumstances of the case, and stating whether the ac
cused person has been forwarded in custody, or has been released
on his bond, and, if so, whether with or without sureties.
(2) Where a superior officer of police has been appointed
under section 158, the report shall, in any cases in which the
Local Government by general or special order so directs, be sub
mitted through that officer, and he may, pending the orders of
the Magistrate, direct the officer in charge of the police-station to
make further investigation.
(5) Whenever it appears from a report forwarded under this
section that the accused has been released 011 his band, the Magis
trate shall make such order for the discharge of such bond or
otherwise as he thinks fit.
Held by the Full Bench (Si'BRA.maxia Avvar, J., dissentiente).—Reports Reports-Charge-
made by a police-officer in compliance with sections 157 and 168 of the Crimi- acîsed ^''oo-
nal Procedure Code, 1882, are not public documents within the meaning of pies of. before
section 74 of the Indian Evidence Act, and consequently an accused person is ûn^ts—Indian
not entitled, before trial, to have copies of such reports. Held by Collins, J., evidence— Right
and Bkxson, J.—The same rule applies to reports made by a police-officer in to inspect and
compliance with section 173 of the Code. Held by Shkphahd and Subba- have copies.
mania Ayvar, JJ.—Reports made by a police-officer in coinplinance with sec
tion 173 of the Code are public documents within the meaning of section 74
of the Indian Evidence Act, and consequently an accused person, being a per
son interested in such documents, is entitled by virtue of section 70 of the In
dian Evidence Act to have copies of such reports before trial. Queen-Empress
v. Arimwgam, I. L. 1!., 20 Mad., 189 (18913).
174. (/) The officer in charge of a police-station, or some Police to inquire
other p dice-officer specially empowered by the Local Government suiciliSê'uv1
in that behalf, on receiving information that a person —
(«) has committed suicide, or
(b) has been killed by another, or by an animal, or by machi

nery, or by an accident, or
(c) has died under circum -tances raising a reasonable sus
picion that some other person has committed an offence,
shall immediately give intimation thereof to the nearest Magistrate
empowered to hold inquests, and, unless otherwise directed by any
rule prescribed by the Local Government, or by any general or
special order of the District or Subdivision^ Magistrate, shall pro
ceed to the place were the body of such deceased person is, and
there, in the presence of two or more respectable inhabitants of
the neighbourhood, shall make an investigation, and draw up a re
port of the apparent cause of death, describing such wounds, frac
tures, bruises and other marks of injury as may be found on
the body, and stating in what manner, or by what weapon or
instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such p.dice-ofticer and other

persons, or by so many of them as concur therein, and shall be forth
with forwarded to the District Magistrate or the Subdivisional
Magistrate.
(3) When there is any doubt regarding the cause of death, or

when for any other reason the police-officer considers it expedient
so to do, he shall, subject to such rules as the Local Government
may prescribe in this behalf, forward the body, with a view to its
be:ng examined, to th« nearest Civil Surgeon, or other qualified
medical man appointed in this behalf by thi Local Government, if
the state of the weather and the distance admit of its being so for
warded without risk of such putrefaction on the road as would
render such examination useless.
(4) In tip Presidencies of Fort St. George and Bombay, in
vestigations under this section may be made by the head of the
village, who shall then report the result to the nearest Magistrate
authorised to hold inquests.
(•5) The following Magistrates are empowered to hold in

quests, namely, any District Magistrate or Subdivisional Magis-
trat \ and any Magistrate specially empowered iu this behalf by
ti e Ltcal Government or the Distriet Magistrate.
[™"$g\toZi: C179 (P- C-)- Whoever, being legally bound to state the truth
vant authorised on any subject to any public servant, refuses to answer any question de-
io que* on.] ma„ded of bim touching that subject by such public servant, in the ex
ercise of the legal powers of such public servant, shall be punished with
simple imprisonment for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.]
[193 (P. C). Whoever intentionally gives false evidence in any [Punishment for
stage of a judicial proceeding, or fabricates false evidence for the pur- evidence.]
pose of being used in any stage of a judicial proceeding, shall be punish
ed with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine ;
and whoever intentionally gives or fabricates false evidence in any
other case shall be punished with imprisonment of either description for
a term which may extent to three years, and shall also be liable to fine.
Explanation /.—A trial before a Court-martial is a judicial pro
ceeding.
Explanation II.—An investigation directed by law preliminary to
a proceeding before a Court of Justice is a stage of a judicial proceeding,
though that investigation may not take place before a Court of Justice.
Illustration.
A, in an enquiry before a Magistrate for the purpose of ascertain
ing whether Z ought to be committed for trial, makes on oath a state
ment which he knows to be false. As this enquiry is a stage of a judi
cial proceeding, A has given false evidence.]
fi74 (P. C.). Whoever, being legally bound to attend in person [Non-att«n-
or by an agent at a certain place and time in obedience to a summons, dience to an 01-
notice, order or proclamation proceeding from any public servant legally Jj,*^ Publio
competent, as such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs from
the place where he is bouud to attend before the time at which it is law
ful for him to depart ;
rupees, or with botli ;
or if the summons, notice, order or proclamation is to attend in per
son or by agent in a Court of Justice, with simple imprisonment for a
term which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.
Illustrations,
(«) A, being legally bound to appear before the Supreme Court at
Calcutta in obedience to a subpoena issuing from that Court, intention
ally omits to appear. A has committed the offence defined in this sec
tion.
(A) J, being legally bound to appear before a Zillah Judge as a wit
ness in obedience to a summons issued by that Zillah Judge, intentionally
omits to appear. A has committed the offence defined in this section.]
ewaoncefj1<MJ f 191 (P* wll0ev,°ri being legally bound by an oath, or by
any express provision of law, to state the truth, or being bound by law
to make a declaration upon any subject, makes any statement which is
false, and which he either knows or believes to be false, or does not believe
to be true, is said to give false evidence.
Explanation I.—A statement is within the meaning of this section
whether it is made verbally or otherwise.
Explanation II.—A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may be
guilty of giving false evidence by stating that he believes a thing which
he does not believe, as well as by stating that he knows a thing which
he does uot know.
Illustrations.
(a) A, in support of a just claim which B has against Z for one
thousand rupees, falsely swears on a trial that he heard Z admit the
justice of 2?'» claim. A has given false evidence.
(6) A, being bound by an oath to state the truth, states that he be
lieves a certain signature to be the handwriting of Z when he does not
believe it to be the handwriting of Z. Here A states that which he
knows to be false, and therefore gives false evidence.
(c) A knowing the general character of Z's handwriting, states
that he believes a certain signature to be the handwriting of Z ; A in
good faith believing it to be so. Here A's statement is merely as to his
belief, and is true as to his belief, and therefore, although the signature
may not be the handwriting of Z, A has not given false evidence.
(rf) A, being bound by an oath to state the truth, states that he
knows that Z was at a particular place on a particular day, not knowing
anything upon the subject. A gives false evidence, whether Z was at
that place on the day named or not.
(<■) A, an interpreter, or translator, gives or certifies as a true in
terpretation or translation of a statement or document, which he is
bound by oath to interpret or translate truly, that which is not, and
which he does not believe to be, a true interpretation or translation. A
has given false evidence.]
inonei»S>nT" 175- {J) A police-officer proceeding under section 174 may,
by order in writing, summon two or more persons as aforesaid for
the purpose of the said investigation, and any other person who
appears to be acquainted with the facts of the case. Every person
so summoned shall be bound to attend and to answer truly all
questions other than questions the answers to which would have a
tendency t;> expose him to a criminal charge, or to a penalty or for
feiture
(2) If the facts do not disclose a cognizable offence to which
section 1 70 applies, such persons shall not be required hy the
police-officer to attend a Magsitrate's Court.
In order to sustain any conviction for giving false evidence upon an alter- Fslteevidenee—
native charge when no evidence is offered to prove the falsity of either state- priceduro "h'ciT
ment in particular, it must he clear that the two statements are contradictory, more thnu ono
The law laid down by the Full Bench in the case of the Empress v. Kussim person isehniy-
Khan has heen altered by the provisions of section 161 of the Code of Criini- JrivcnWwev^*
nal Procedure, 1882, and witness who makes a false statement to a police-ofti- deuce in the
cer in reply to a question which lie is bound to answer, would lie guilty of in- !"""c procecd-
tentionally giving false evidence. When four persons were accused of having
given false evidence in the same proceeding, and the Sessions Judge, win c
professing to try each accused separately, heard the evidence of the witnesses
only once, held, that this was substantially trying the four prisoners together,
and was an improper mode of procedure. Nathu Sheikh v. The Queen-Em
press, I. L. K., 10 Cal., 405 (1884):
Section 161 of the Code of Criminal Procelurc, 1882, makes it obligatory False evidenee-
on a person examined in the course of a police investigation under Chapter ''"'j',™^",^)''"
XIV to answer truly all questions put to him (other than questions the cinl'prorccdiiifc.
or to a penalty or forfeiture), and such person, if be knowingly answers
falsely, commits the offence of giving false evidence in a stige of a judicial
proceeding under section 193 of the Indian Penal Code. Queen- Empress v.
Parshram Roy Sing I. L. R., 8 Bom., 216 (1883).
176. (/) When any person dies while in the custody of the inquiry by Ma-
police, the nearest Magistrate empowered tj hold inquests fhall, muw 'or death,
and, in any other case mentioned in section 174., clauses (a), (fc)
and (c) of sub-section [1), any Magistrate s:> empowered may. hold
an inquiry into the cause of death, either instead of, or in addition
to, the investigation held by tlje police-officer ; and, if he does so,
he shall have all the powers in conducting it which he would have
in holding an inquiry into an offence- The Magistrate holding
such an inquiry shall record the evidence token by him in connec
tion therewith in any of the manners hereinafter prescribed accord
ing to the circumstances of the case.
(2) Whenewr such Magistrate considers it expedient to Power todisin-

make an examination of the dead body of any person who has tercori>ses-
been already interred, in ord?r to discover the cause of bis
death, the Magistrate may cause the body to be disinterred and
examined.
Where the Magistrate of a division held an inquiry, under section 135 of the Inquiry into
Criminal Procedure Code, 1872, into the cause of the death of a person found jj)!'^"'^?"j|tt7
dead under suspicious circumstances, ami, without making a specific charge jrintVnte—Privi-
against any person, drew up a report embodying the result of his inquiry, and leved oommnni-
seLt the report to the Magistrate of the district, and subsequently proceedings ^'prôolinK-
were taken against one of the witnesses, which ultimately resulted in an acquit- FindinK-Coro-
tal,— 'Jeld by the High Court, that there being nothing in the language of ncr s inquest,
section 135 requiring tbe Magistrate holding such an inquiry either to make
a rep >rt or to come to a finding, the report actually sent could not be considered
as part of a judicial pioi.ee ling, ami that therefore the High Court bad no
power to scud for it under section 2'Jli of the Code. No analogy .'xists between
a Coroner's inquest and an inquiry into the cause of death under the Code.
In re Troi/lvhhanath Biswas, I. L. R.,3Ca1., 742 (1878).
Proceedings in Prosecutions. [Chap. XV.
PART VI.
PROCEEDINGS IN PROSECUTIONS.
CHAPTER XV.
Of the Jurisdiction of the Criminal Courts in In

quiries and Trials.
A. —Place of Inquiry or Trial.
Ordinary place 177. Every offence shall ordinarily be inquired into and
tri.inqu,r>' ""d tried by a Court within the local limits of whose jurisdiction it
was committed
[Place of trial.] [44 (Act XIV of 1887—Indian Marine Act). A person subject
to this Act who is accused of an offence to which the Act applies may
be tried aud punished for the offence by a criminal Court in any place
where he may happen to be in the same manner as if the offence had
been committed in that place.]
TArrest for off- [131. (1) (Act IX of 1890 — Indian Railway Act). If a person
certain "aSt-8' commits any offence mentioned in sections* 100, 101,119,120,121,
iona.] 126, 127, 128 or 129, or in section 130, sub-section (1), he may be
arrested without warrant or other written authority by any railway
servant or police-officer, or by any other person whom such servant or
officer may call to his aid.
(2) A person so arrested shall, with the least possible delay, be
taken before a Magistrate having authority to try liira or commit him
for trial.]
[Jurisdiction.] [52 (Act XIV of 1895—Pilgrim Ships Act). For the purpose
of the adjudication of penalties under tin's Act, every offence against it*
provisions shall be deemed to have been committed within the limits of
the jurisdiction of the Magistrate of the place where the offender is
found.]
Note.—The provision of section 47 of Act X of 1SS7 -Native Passengers
Act—is identical with the above.
• Section 100.—Drunkenness. tempting to hurt jicrsons tra
„ 101.—Endangering tho* safely uf velling by railway.
persons. section 12s ■Endangering safety of per
., Uy.—Entering carriage or other sons travelling by railway by
place reserved for females wilful act or omission.
„ 120.- Drunkenneas or nuisance on 129.—Endangering safely of persons
a railway. travelling by railway by rash
„ 121.- Obstructing railway servant or negligent act or omission.
iu his duty. 130. —Special provision with respect'
„ 126.— Maliciously wrecking or at to the commission by chil
tempting to wreck a train. dren of acts endangering
m li7.—Maliciously hurting or Bi safety of!!persons travelling
by railway.
S. 177.] Proceedings in Prosecutions. 223
[60. (1) (Act X of 1889 —Indian Ports Act;, Any person [Jurisdiction
offending against the provisions of this Act in any port subject to this ""£2;
Act shall be punishable by any Magistrate having jurisdiction over any °< jurisdiction.]
district or place adjoining the port.]
If a person neglects to maintain his wife the proper Court to take cog- Maintenance -
nizance of the complaint of the wife is the Court within the jurisdiction of Complaint by a
which the husband resides. G. Benbow v W. Benboir, I. L. It., 24 Cal.,
638 (1897).
Per Birdwood, J.—The High Court cannot, under section 526 of the Order of train
Criminal Procedure Code, 1882, any more than under section 25 of the 'nVm*hecourt
Civil Procedure Code (Act XIV of 1882), direct the transfer of a case --The Scheduled
which is not properly before a subordinate Court of competent jurisdiction xi*v''ofl*<874—
to receive and try it. Under section 5 of the "Scheduled Districts Act The Aden Act
XIV of 1874 " the Local Government cannot, by extending an Act which II of istsj
is of necessarily restricted application, make its provisions applicable to
an entirely new subject-matter, viz., the litigation of a new local area. Ac
cordingly where the Government of Bombay issued the following notifica
tion No. 823 of 1886 : —" In exercise of the powers conferred by section 5
of the Scheduled Districts Act XIV of 1874, the Governor of Bombay in
Council is pleased, with the previous sanction of the President in Council, to
extend to the island of Perini the whole of Act II of 1864 of the Governor-
General in Council, with the exception of sections 2, 17 and 23. The Gover
nor in Council is further pleased, in exercise of the powers conferred by
section 6 of the Scheduled Districts Act XIV of 1874 and by any other
enactment, to direct that the Resident at Aden shall be Sessions Judge and
Court of Session for the island of Perim, and shall exercise the same jurisdic
tion and powers in respect of the administration of civil and criminal justice
in the said island, and in respect of the trial of persons committed for trial
by the Court of Session for offences committed in the said island as are
vested in him in Aden by the said Act :" Held, that the provisions of
the Aden Act II of 1864, which (as appears from the preamble) deals with
the litigation of Aden alone, could not be extended to Perim without enlarg
ing the subject-matter of the Act. Held, also, that the appointment of the
Political Resident at Aden as a Sessions Judge and Court of Session for the
island of Perim, made under clause («) of section 6 of the Scheduled Districts
Act XIV of 1874, was valid and effectual with reference only to the
provisions of the Criminal Procedure Code, and that that portion of the
notification which regulates the exercise by the Resident of his powers with
reference to Act II of 1864 should l>e treated as surplusage. A prisoner
charged with having committed murder at Perim was committed by the Ma
gistrate there on the 26th August, 1885, for trial before the Political Resident
at Aden, by whom he was convicted and sentenced to death on the 14th Sep
tember, 1885. On the 25th January, 1886, the High Court of Bombay reversed
the conviction and sentence on the ground that the Court of the Resident had
no jurisdiction over the island of Perim, and that the Resident, not having
been appointed a Judge of a Court of Session for that island, was not compe
tent to try the prisoner. The High Court ordered a retrial before a competent
Court. On the 10th February, 1886, the Government of Bombay issued the
notification (No. 823) above set forth. On the Ulh March, 1886, an appli
cation was made to the Hi^'li Court of Bombay for the transfer of the case to
another Court of Session or the High Court for trial. Held, that Perim is a
Sessions Division, and that, after the establishment, under the Code of Cri
minal Procedure, of a Court of Session for I he Perim Sessions Division and the
appointment of the Resident at Aden as Sessions Judge of that Court, the
accused stood properly committed to a Court of Session. The High Court,
therefore, could transfer the case from that Court under section 526 of the
224 Proceedings in Prosecutions. [Chap. XV.
Code to any other Court of equal or superior jurisdiction, or the High Court of
Bombay. Per Jardwe, J.—After the High Court had annulled the pro
ceedings iu the Court of the Resident at Aden as without jurisdiction, the case
could not be treated as still pending in his Court, and as there was no Court of
Session in existence at the time of the commitment, it necessarily followed
that the case remained in the Magistrate's Court. But, w hether the case
was considered as pending in the Court of a Magistrate, or of a Itesident, or
of a Sessions Judge, the High Court has the power to transfer it, and that
under the circumstances the case should he transferred to the High Court for
trial. Queen-Empress v. Hanged Tekchand, I. L. B., 10 Bom., 274 (1886).
Criminal breach B having contracted in foreign territory to labour for .S' in British ter-
Judwlictfon- "t017i brol:e 1)is contract. He was arrested in foreign territory, brought in to
Contract made British territory, prosecuted under Act XIII of 1859, and ordered to perform
in foreim tor- the contract: Held, that the Court had no jurisdiction. Siddhav. Biligiri,
ToSd in ffrll 1- L- 7 Mad., 354 (1884).
tish territory—
Breach—Arrest The order of a Magistrate committing a case to the Court of Session is
tory.™*" tern" an order of a criminal Court within the meaning of section 531 of the Code
of Criminal Procedure, 1882. If such an order, contrary to the requirements
Sessions" Vm"i- °^ H00tion *77, directs the commitment to bo made to a Court of Session which
sion-Jurisdic- has no territorial jurisdiction, it is not to he set aside unless it appears that
Won. the error occasioned a failure of justice. Queen-Empress v. Thaku, I. L. R.,
8 Bom., 312 (1884).
Mutiny Act,sec- Section 101 of the Mutiny Act does not deprive the Civil (as opposed to
tion lot—Juri>- Military) Court of jurisdiction over British soldiers committing offences with-
(n's'oAiosod to t'ie territorial limits of those Courts, nor render the exercise of their juris-
MilitHryj Courts diction dependent upon the sanction of the Commander-in-Chief. The section
m(i««M»v °Bri" is mere'v permissive of a Military trial being held. The Empress v. Maguire,
tish soldier. " I. L- B., 5 Cal., 124 (1879).
SftobeS 178. Notwithstanding anything contained in section 177,
Btons<Mv£ions'" the I-"001' Government may direct that any cases or class of cases
committed for trial in any district may be tried in any Sessions
Division :
Provided that such direction is not repugnant to any direc
tion previously issued by the High Court under section 15 of the
Indian High Courts Act, 18G1, or under this Code, section 526.
iuierintoSdnnd t15 (2i ftnd 25 V'0-' C< 104, sectiou 15)' Each °f 1,10 Court3
to frame rules of established under this Act shall have superintendence over all Courts
sXo'rdTnato for which may be subject to its Appellate Jurisdiction, and shall have power
Courts.] to call for Returns, and to direct the transfer of any suit or appeal from
any such Court to any other Court of equal or superior jurisdiction, and
shall have power to make and issue general rules for regulating the
practice and proceedings of such Courts, and also to prescribe forms for
every proceeding in the said Courts for which it shall think necessary
that a form be provided, and also for keeping all books, entries, and
accounts to be kept by the officers, and also to settle tables of fees to be
allowed to the sheriff, attorneys, and all clerks and officers of Courts,
and from time to time to alter any such rule or form or table ; and the
rules so made, and the forms so framed, and the tables so settled shall
be used and observed in the said Courts, provided that such general
rules and forms and tables be not inconsistent with the provisions of
Ss. 178-179.] Proceedings in Prosecutions. 225
any Law in force, and shall before they are issued hare received the
sanction, in the Presidency of Fort William, of the Governor-General
in Council, and in Madras or Bombay of the Governor in Council of the
respective Presidencies.]
The Local Government lias no power under section 178 of the Code of
Bunmi Courts
Criminal Procedure, 1882, to transfer for trial to the Court of a Commissioner
z£3>'?r j ?'
a criminal case duly committed for trial to the Court of the Recorder of
Prooedure'code
Rangoon ; but the Local Government lias the power to transfer a case from
- Reference to
the District of Rangoon to the Sessions division of Pegu. Queen- Empress v.
jf*1'.. S'-'nnrts
Nga Tha Momg, I. L. R., 10 Cal., G43 (1884). Act (No. XVII
of 1873'.
179. When a person is accused of the commission of any Accused triable
offonce by reason of anything which has been done, an 1 of any '<Yoi7chCor
consequence which has ensued, such offence may be inquire I into whor^ eon»»-
or tried by a Court within the local limits of whose jurisdiction
any such thing has been done, or any such con-equence has ensued.
Illustration".
(<t) A is wounded within the local limits of the jurisdiction
of Court A", and dies within the local limits of the jurisdiction of
Court Z. The offence of the culpable homicide of A may be inquired
into or tried either by X or Z.
(6) A is wounded within the local limits of the jurisdiction
of the Court A', and is, luring ten days within the local limits of the
jurisdiction of Court V, and "luring ten days more within the local
limits of the jurisdiction of Court Z, unable in the local limits of
the jurisdiction of either Court T or Court Z to follow his ordinary
pursuits. The offence of causing grievous hurt to A may be inquired
into or tried by A', Y or Z.
(c) A is put in fear of injury within the local limits of the juris
diction of Court A', and is thereby induced, within the local limits of
the jurisdiction of Court T, to deliver property to the person who
put him in fear. The offence of the extortion committed on A may
be inquired into or tried either by A or V.
(d) i is wounded in the Native State of Baroda, and dies of
his wounds in Poona. The offence of causing A's death may be
inquired into and tried in Poona.
B, an employe of a Company the office of which was at Cawnporc, was Jurisdiction-

charge t with the ltfenco punishable under section 408 of the Penal Code. The Place where
complainant allege 1 that /{ being in charge on behalf of the Company, at Jf[lse<,"n"ôf
a place in Bengal, of certain goo Is belonging to the Company and being or- Criminal breach
dere I to return the said goods to Ciwnpore, never di I so, and failed to account °'
for the goods or their value to the loss of the Company, fffld. that on the
statement of the case by the complainant the Courts atCawnpore bad jurisdic
tion to inquire into the charge, inasmuch as tho consequence of B's acts,
namely, loss to the Company, occurred in Cawnpore. Queen-Empress v.
O'Brien, I. L. It , 19 AIL. Ill (18S)6).
I.'j
226 Proceedings in Prosecutions. [Chap, XV*
Abetment—In- Where one person instigates another to the commission of an offence hy

stigation ^by means of a letter sent through the post, the offence of abetment by instiga-
Placc8\vlioreoiT- t'on is completed so soon as the contents of such letter become known to the
enee may be addressee, and such offence is triable at the place where such letter is received.
to™1- Queen-Empress v. Sheo Dial Mai, I. L. B. 16 All., 389 (18'J4).
Place ot trial 180. When an net is an'offence by reason of its relation to

offeê^Vrea- any other act which is also an offence or which would be an offenco
tootnor offSnc" ^ *-ke ôer were caPa°le of committing an offence, a charge of
the first-mentioned offence may be inquired into or tried by a
Court within the local limits of whose jurisdiction either act was
done.
Illustrations.
(a) A charge of abetment may be inquired into or tried cither by

the Court within the local limits or whose jurisdiction the abetment
was committed, or by the Court within the local limits of whose
jurisdiction the offence abetted was committed.
(4) A charge of receiving or retaining stolen goods may be in

quired into or tried either by the Court within the local limits of whoso
jurisdiction the goods were stolen, or by any Court within the local
limits of whose jurisdiction any of them were at any time dishonestly
received or retained.
(c) A charge of wrongfully concealing a person known to have

been kidnapped may be inquired into or tried by the Court within
the local limits of whose jurisdiction the wrongful concealing, or by the
Court within the local limits of whose jurisdiction the kidnapping,
took place.
Offencos mm- Rum Dei, Chajju, Piru and Kamar were committed by the Joint Magis-
ent'diVtrictai in tnite °* Muzaffarnagar to the Court of the Sessions Judge of Saharnnpore.
the course of Upon the case which was before the Joint Magistrate it appeared that Ram Dei
action—Commit 'ia(^ committed the offence punishable tinder section 3i>6 of the Penal Code in the
nient where to district of Bijnor, and possibly the other three persons had committed the offence
be made. punishable under section 3C8 of the Penal Code in the district of Muzaffarnagar ;
Chajju and Pint also possibly having committed the offence punishable under
that section in Bijnor. Under the above circumstances the High Court, maintain
ing the order of commitment made by the Joint Magistrate, directed the ease
to he transferred for trial to the Court for tho trial of Sessions cases arising
in the Bijnor district, namely, that of the Sessions Judge of Moradubad.
Queen-Empress v. Rum Dei, I. L. R, 18 All., 350 (1896).
Dakaiti commit- Certain persons, who were not proved to be British subjects, were found
led in British in possession, in a Native State, of property the subject of a dakaiti committed
territory - Dis- jn British India. They were not proved to have taken part in the dakaiti, and
stolen 'property there was no evidence that they had received or retained any stolen property
in foreign tern- in British India. They were convicted of offences punishable under section 412
t<>r>": of the Penal Code. Held, that no offence was proved to have been committed
within the jurisdiction of a British Court. Queen-Empress v. Kirpul Singh,
I, L. R., 9 All., 523 (1887).
A Nepalese subject, having stolon cattle in Nepal, brought them into Dishonestly re-
British territory, where he was arrested and sentenced to one year's rigorous {"^""tcrritor'v'"
imprisonment. Held, that he could not be tried for the theft itself, but that property stolen
he might be convicted of dishonestly retaining the stolen property. The beyond British
Empress v. Sunker Gope, I. L. E., 6 Cal., 307 (1880). territory.
The accused stole property in foreign territory. Held, that section 67 of Theft in foreign
the Code of Criminal Procedure, 1872, did not give the Courts of such distric t d4j"tj^y"JurU"
jurisdiction to try him for the theft. Rerj. v. Adivigadu, I. L. I?., 1 Mad., 171
(1876).
Where
H. the dakaiti was
Gayakwad, andcommitted
a part ofat the
Velanpor,
stolen a property
village infound
the territory
where itofhad
II
Daka^'ii"
GnyiikwaiTs til°
been concealed by the accused in British territory, it was held that a convic- territory—Trial
tion of dakaiti could not be sustained, that being a substantive offence com- rii^"'1811 ter"
pleted as soon as perpetrated at Velanpor, although, had Velanpor been in British
territory, the subsequent acts in the process of taking away the property might
in the legal sense have coalesced with the first and principal one, so as to givo
jurisdiction under section 67 of the Code of Criminal Procedure, 1872, in each
district into which the property was conveyed. But on a conviction of retain
ing stolen property the sentences awarded could, it was held, be sustained, the
retaining having taken place in British territory. Reg. v. Lakhya Qotind, I.
L K., 1 Bom., 50 (1875).
Where a foreign subject, resident in foreign territory, instigated the Foreign terri-
commission of an offence which, in consequence, was committed in British tory—Foreign
territory: Held, that the instigation not having taken place in any district ■ubi9ct-
created by the Code of Criminal Procedure, 1872, the instigator was not amen
able to the jurisdiction of a British Court established under that Code, section
66. Reg. v. Pirtai, 10 Bom. C. II., 356 (1873).
181. (1) The offence of being a thug, of being a thug ami ^{^„thxf0 °l
committing murder, of dacoity, of dacoity with murder, of having gam? of dacoits,
belonged to a gang of dacoits, or of having escaped from custody, Sodylet™
may be inquired into or tried by a Court within the local limits of
whose jurisdiction the person charged is.
(2) The offence of criminal misappropriation or of criminal Criminal ruisap-
breach of trust may be inquired into or tried by a Court within the SmaVbreach
local limits of whose jurisdiction any part of the property which °nrust-
is the subject of offence was received or retained by the accused
person, or the offence was committed.
(3) The offence of stealing anything may be inquired into or Stealing,
tried by a Court within the local limits of whose jurisdiction such
thing was stolen or was possessed by the thief or by any person
who received or retained the same knowing or having reason to
believe it to be stolen.
(4) The offence of kidnapping or abduction may be inquired Kidnapping and
into or tried by a Court within the local limits of whose jurisdic- B,Kl"et1011-
tion the person kidnapped or abducted was kidnapped or abduct
ed or was conveyed or concealed or detained.
The Penal Code and Criminal Procedure Code, 1882, have no application jurisdiction of
to the Tributary Mehals of Kheonjur which is on precisely the same footing Criminal court
in that respect as Mohurbhunj. Certain persons, officers of the Maharajah Menîs— ry
of Kheonjur, one of whom was a resident of the Cuttack district, and the Kheonjur—
others residents of Kheonjur, were charged before the Deputy Magistrate of " Loca' nrc;l "
Proceedings in Prosecutions. [Chap. XV
Tajpore with certain offoncos under the Penal Code. They were convicted,
and on appeal to the Sessions Judge, the conviction was upheld. It was
found by the Sessions Judge that the scene of the occurrence which gave
rise to the charges was within the territory of Kheonjur. Held, that the
Deputy Magistrate and Sessions Judge had no jurisdiction to try the case, and
that the conviction must be set aside. lltld, further, that sections 182
and 531 of the Code had no application to the ease. The words " local area "
used in section 182 only apply to a " local area " over which the Criminal Pro
cedure Code applies, and not to a " local area " in a foreign country or in other
portions of the British Empire to which the Code has no application : and simi
larly section 531 only refers to districts, divisions, sub-divisions and local
areas governe I by the Code of Criminal Procedure. In re Bivhilranund Dan
v. Bhugbutperai, I L. R., 10 Cal., 007 (188<>).
Jurisdiction of. The Civil Station at Rajkot is not part of British India within the mean-
Courts in Bri- ing of Statute 21 and 22 Vic, Chap. 100. Where the accused, a sub-
oaonoes'* com' iect a N>tivc State, committed theft at Rajkot Civil Station, and
mined out of was found in possession of the stolen property at Thana, held, that us
British India— |ile offence was not committed in British India, and as the accused was
' ' the subject of a Native State, the Sessions Uourt at Thana had no ju
risdiction to try the accuse 1 for theft, un ier section 381 of the Indian
Penal Code. But it was competent to try him for dishonest retention of
st lei) property under section 410 of the Indian Penal Cole as amended
by Act VIII of 1882. Queen-Empress v. Abdul Latif Valwl Abdul Ha-
himan, I. L. It., 10 Bom., 180 (1885).
Lawful custody■ Escape from the custody of a village watchman by a person wanted
c?C1t!3 ,lf>nlT tne police on a charge of theft and arrested on suspicion by the village
iapeodcen " " watchman, is no offence under section 224 of the Indian Penal Lode. The
' Queen v Bojjigan, I. L. B., 5 Mad., 22 (1882).
Receiving and "^hc P"soner was tried at Bombay, under section 411 of the Indian
retftiiiinc stolen Penal Code, on a charge of having dishonestly received and retained stolen
crjods within property, knowing or having reason to believe the same to bo stolen
where tho theft property. He was also charge I under sections 108 (Explanation III) and 1 09
was cimmitt«l with having abetted that offence. It appeared at the trial that the prisoner
ti"n—Coniini--" was a clcrK; m tue employment of a mercantile tirtu at Port Louis, in
sion to take cvi- tho island of Mauritius. On the 2 th October and 1st November, 187'.*,
of Hirti Court ccrtain letters addresse 1 by the firm to their commission agent at Bom-
to '.-runt, on up- bay were abstracted from the post office at Port Louis. Tho letters con-
pli itiouof pri. tained six bills of exchange belonging to the linn for an aggregate
aL'" amount of Bs. 20,550. On the 1st November, 1879, the prisoner sent
all six bills of exchange in a letter to the Manager of a Bank at Bombay,
requesting that the several amounts might be collected on the prisoner's
own account, and remitted to him by bills on Mauritius. The sums
were accordingly realize I by tho Bank, and duly remitted to the pri
soner. It was not denie 1 that the prisoner obtained possessiou of the
money and used it as his own. His defence was that the bills had been
given to him in payment of a debt. The prisoner was convicted on all
the charges, but, the jurisdiction of the Court having been challenged
on his behalf, the question was reversed, field, per Sargent and Mel
ville. JJ., (West, ■].. dissentiente), that the bills of exchange having
been stolen at Mauritius, in which island the Indian Penal Code is not
in force, could not bo regarded as " stolen property " within the provi
sions of section 410, so as to render tho person receivi g them at Bom
bay liable under section 411 ; that the High Court of Bombay had, there
fore, no jurisdiction, and that the conviction must be quashed Previously
to the tnal at the Sessions the prisoner had applied to the Court for commis
sions to Pondicherry and Mauritius to take evidence on his behalf. The ap
plication was refused on the ground that the High Court had no authority to
S. 1 82. j Proceedings in Prosecutions. 229
issue a commission in such a case, but the learned Judge (West, J.), reserved
the question for the Full Court. Held, that the High Court had no power to
issue a commission out of the juris liction in a criminal case on an application
by the accuse I. Enipreu v. S. Moorga Chetty, I. L. I!., 5 Bom , 338 (1881).
A Xepalese subject, having stolen cattle in Nepal, brought them into jjj"^"''^]^
British territory, where he was arrested and sentenced to one year's rigorous t?»h",B territory
imprisonment. Ile.l I, that lie could not be trie I for the theft itself ; but that property itoloii
bo might bo convicted of dishonestly retaining the stolen property. The BrUlsh
Emprin v. Hunker Go -e, I. L. B., 6 Cuf., 307 (1880).
The accused stole property in foreign territory. Held, that section 07 of Theft in foreign
the Code of Criminal Procedure, 1872, did not give the Courts of suc h district ris"io°louT "
juris liction to try him for the theft. Reg. v. Adivigadu, I. L. B., 1 Mad.,
171 1870)
Where dakaiti was committed at Velanpor, a village in the territory ( f Jurisdiction—
II H. the Gayakwad, and a part of the stolen property found where it bun S.'î1' the
been coueeale I by the accuse ! in British territory, it was held that a convic- territory' Trial
tion of dakaiti could not he su-ttaine 1, that bei <g a substantive offence com- in British terri-
plete 1 as soon as perpetrated at Velanpor, although, had Velaupor been in lor-v-
British territory, the subsequent act in the process of taking away the proper
ty might in the legal sense have coalesced with the first and principal one,
so as to give jurisdiction un ler section 07 of the Cole of Criminal Procedure,
1872, each district into which the property was conveyed. But on a conviction
of retaining stolen property the sentences awarded could, it was held, be sus
tained, the retaining having taken place in British territory. Reg. v. Lakhija
Gocind, I. L. U.. 1 Bom., 50 (187.0).
182 When it is uncertain in which of several locnl areas Pi»eo of inquiry
an offence was committed, or wone"' often™
in uncertiiin or
where an offence is committer! partly in one local area and "<!*'" °}K dU'
... 1 j trict only ; or
partly IU UOtUer. or where offence is
continuing, or
where n offence is a continuing one, and continues to be |£ of "eve"
committed m more local areas th in one, or
where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdic
tion over any of such local areas.
The Penal Code and Criminal Procedure Code, 1882, have no application Jurisdiction of
to the Tributary Mehals of Kheonjur which is on precisely the same footing Criminal Court
in that respect as Mohurbhunj. Certain persons, officers of the Maharaja of h,TsribKheon-le"
Kheonjur, one 'f whom was a resident of the Cuttack district, and the others jur ' l<ucal
residents of Kheonjur, were charged before the Deputy Magistrate of Taj- area."
pore with certain offences under the Penal Code. They were convicted, and
on appeal to the Sessions Judge, the conviction was upheld. It was found by
the Sessions Judge that the scene of the occurrence which gave rise to the
charges was within the territory of Kheonjur. Held, that the Deputy Magis
trate anil Sessions Judge had no juris liction to try the case, and that the
conviction must be set aside. Held, further, that sections 182 and 5-tl of the
Code had no application to the case. The words li local area " used in section
182 only apply to a " local area " over which the Criminal Procedure Code
applies, and not to a "'local area" in a foreign country or in other portions
of the British Empire to which the Code has no application ; and similarly,
sejti 1:1 531 only refers to districts, divisions, sub-divisions and local areas
g )verae l by the Code of Criminal Proce lure. In re Bichitranund Dau r.
Bhugbutperai, I. L. R.. 16 Col., 667 (1889).
230 Proceedings in Prosecutions, [Chap. XV
offence commit- 183. An offence committed whilst the offender is in the

oiiajoumey. Cf)Urse Qf performing a journey or voyage may be inquired into or
tried by a Court through or into the local limits of whose juris
diction the offender, or the person against whom, or the tiling in
respect of which, the offence was committed, passed in the course
of that journey or voyage.
Conversion of B entrusted with rice at M (a port in British India) for eonveryance to C
êntVusted'tS (1>lso a Polt 15ritish India), took the rice to G, a port in foreign territory, and
be carried from there sold it . He was convicted at M of criminal breach of trust as a carrier
and to a British under section 407 of the Indian Penal Code. Held, that the Sessions Court at
Indian or . jlaj Q0 jurisdiction, to try the offence under the Code of Criminal Procedure,
1872. Held, also, that no offence was committed on the high seas so as to
give the Court jurisdiction under 12 and 13 Vic, Cap. 90, extended by 23 and
24 Vic, Cap. 88. Bapu Daldi v. The Queen, I. L. R., 5 Mad., 23 (1882).
Crime commit- A box containing money having been missed during a halt at Sum-
ted on a journey, bhoogungc, from a bout which was on the way to Chittagong, and a question
having been raised whether the charge of theft which was based on the loss
should be tried at Tipperah orChittagong: Held, that the journey was not bro
ken by the halt, and that, under section 67, Criminal Procedure Code, 1872,
the case could be tried at Chittagong. The Queen v. Abdul All, 25 W. R., 45
(1876).
Jurisdiction— Where an offence of criminal intimidation under section 503, Penal Code,
Journey—Error, was said to have been committed (luring a journey by Railway from Bombay
to Calcutta, it was held that the Magistrate of llowrah had no jurisdiction to
entertain the charge as the offence had not been committed within the actual
territorial limits of his ordinary jurisdiction ; and, further, that the case did not
fall within section 07 of the Code of Criminal Procedure, 1872, that section
(Illustration (<()) giving jurisdiction to the local tribunal at the place where the
complainant or the offender first stops or breaks his journey ; such journey
must be a continuous journey from one terminus to another. Section 70 of
the Code contemplates such an error only of jurisdiction as may arise from a
case being tried in one district or Sessions division of a province, where it
ought properly to have been tried in the neighbouring district or Sessions di
vision, and docs not apply to cases in which the right local jurisdiction is a
jurisdiction foreign to the Court which has power to order a new trial, and
which lies entirely outside the province to which the charge was actually en
tertained. Peerun alias Kureemnn Ayah v. Mr. C. D. Field, 21 W. P.., CO
(1874).
Obstruction— 1° a case which a Magistrate ordered a person either to remove an obs-
Fathway—Jury, truction to a path leading to a road or to show cause why such order should
not be enforced, and in which, subsequently, the Magistrate, on the application
of the party charged, appointed a jury under section 523 of the Code of Crimi
nal Procedure, 1872, il was held that the question the jury should have been told
to try was the question whether the first order of the Magistrate was reason
able and proper, and for that purpose to consider whether there was a bona fide
question between the parties as to the right of way over this particular piece
of land. Hoy Omesh Chunder Sen v. Ichanath Mozumdar, 21 W. R., 04
(1874).
Jurisdiction— The drunkenness of a guard or under-guard in charge of a Railway train
K^rioiTntii <"' «ny part thereof is an offence included in section 35 of Act XVII 1 of 1802 ;
way train. * but the High Court has no jurisdiction to try a prisoner charged with such
offence where he was removed from his post at a place outside the local limits,
although the train thereupon proceeded with him to Madras. The Queen v,
Malony, 1 Mad. H. C, 1H3 (1803).
Ss. 183-185.] Proceedings in Prosecutions, 231
184. All offences against the provisions of any law for the OTence«agam»t
time being in force relating t > Railways, * Telegraphs, t the Post- KT*ph.aPost-ee"
office \ or Arms and Ammunition § may be inquired into or tried J^jf and Arms
in a presidenoy-town, whether the offence is stated to have been
committed within such town or not :
Provided that the offender and all the witnesses necessary for
his prosecution are to be found within such town.
[134 (1) (Act IX of 1890—Railway Act). Any person com- [Place of trial.]
mitting any offence against this Act or any rule thereunder shall be
triable for such offence in any place in which he may be or which tho
Local Government may notify in this behalf, as well as in any other
place in which he might be tried under any law for the time being in
force.]
It is not essential to the validity of 11 warrant issued under section 157 Issueof warrant
of the Code of Criminal Procedure, 1872, that the Magistrate, issuing it, ^v","j^^
should be, at the time he issues it, within the local limits of his jurisdiction, tion from for-
Ile may issue such a warrant from a place in foreign territory. Reg. v. Loclia oiS" territory.
Kula, I. L. B., 1 Bom., 340 (1870).
185. (1) Whenever any doubt arises as to the Court by High Court to
which any offence should under the preceding provisions of this oMoubt'di^86
chapter be inquired into or tried, the High Court, within the local Jj}?' *hteIrellin"
limits of whose appellate criminal jurisdiction tho offender actual- iaaihake piaco.
ly is, may decide by which Court the offence shall be inquired into
or tried.
(2) In Lower Burma, when the offender is a European
British subject, the Court of tho Recorder of Rangoon, and in all
other cases tho Court of the J udicial Commissioner, shall, for the
purposes of this section, be dmned to be the High Court.
B, an employe of a Company the office of which was at Cawnpore, was Jurisdiction-
charged with the offence punishable under section 408 of the Penal Code. Place where
The complainant alleged that B being in charge on behalf of tho Company, ^ûed-0'
at a place in Bengal, of certain goods belonging to the Company and being or- Criminal
dered to return the said goods to Cawnpore, never did so, and failed to ac- breach of trust .
count for the goods or their value, to the loss of the Company. Held, that on
tho statemennt of the case by the complainant the Courts at Cawnpore had
jurisdiction to inquire into the charge, inasmuch as the consequence of B'a
acts, namely, loss to the Company, occurred in Cawnpore. Queen-Einpresi v.
O'Brien, I. L. It., 19 All., Ill (1896).
The Political Agent of Thai Chotiali, further described in the proceedings EUTOmitmenBri.
as a Justice of the Peace, committed one Clegg. a European British subject, for tish subject-
trial by the Chief Court on charges under sections 302, 304 and 325 of the Political Agent—
Penal Code, in that he had caused the death of one Clay at Nari Gorge, comi'i'tmont"011
It appeared that by a Notification of the Government of India in the Foreign —Doubt as to
Department, the Political Agent for the time being of Thai Chotiali, being a îtoub^Mto™1
European British subject, wus appointed to be a Justice of the Peace within competency of
committing
* Act No IX of 1890 Magistrate—
t Act No. XIII of 1885 amended by Act No. XI of 18S3. Commitment
J Act VI of 1898.
5 Act XI of 1878, amended by XU of 181)1.
the territories of His Highness the Khan of Khelat, and it was further direct
ed that the Court of the Agent of the Governor-General in Biluchistan, as the
Court of Sessions, and the Chief Court of the Punjab as the High Court,
should be the Courts to which the said Justice of the Peace should commit
European British subjects for trial. It further appeared that Nari Gorge was
situate 1 within the Afghan district of Sibi, assigned by the then Amir of Af
ghanistan to Her Majesty by the treaty of Gundamak. Held, that as the
locality where the offence was committed was not in the territories of the
Khan of Khelat, the commitment in question was not a valid exercise of the
authority to commit Europe in British subjects' to the Chief Court conferred
by the Notification above referred to. Hell, further, that it was not necessary
to determine whether Nari Gorge was within British 'India or beyond the
limits of British In iia and ithin the territories of the Amir of Afghanistan,
as in either view it did not appear that the commitment was a valid com
mitment. Assuming that Nari Gorge was beyond the limits of British India
and within the territories of the Amir, it did not appear from the record or
otherwise, even upon the assumption tiiat the Governor-General in Council had
BOine power or jurisdiction within the country in which Xari Gorge was situat
ed, that he had delegated any portion of his power to the officer who made the
commitment, either under the provisions of the Foreign Jurisdiction and Ex
tradition Act of 187!*, or in any other manner. Assuming that Nari (Jorge
was in British territory, it did not appear from the record, nor was it other
wise known to the Court, that the committing officer was a Magistrate of the
first-class and a Justice of the Peace, within and for the whole or any portion
of British India, or that he had any legal authority to deal with an accused
person, European British subject or not, for an offence committed within Bri
tish territory. Held, also, that the case was not one in which doubt arose as to
ti.e Court by which an offence should be enquired into or tried, within the
ii eaningof section 185 of the Criminal Procedure Code, 1882, the doubt which
arose in the present case not being one as to the place of trial under any of
the provisions in section 177 to section 184 of the Code relating to the place of
trial, but a doubt as to the competency of the committing officer to commit
the accused as a European British subject for trial by the Chief Court of the
offence charged against him. So much of the order of the committing officer
as committed the accused for trial by the Chief Court must therefore be set
aside. The Empress v. Clegg, Punj. Rec. 1887, 24.
Power to issue 186. (1) When a Presidency Magistrate, a District Magis-
warrantfor trate, a Subclivisional Magistrate, or, if he is specially empowered
tedôS'ocai *n behalf by the Local Government, a Magistrate of the first
iurisdictkin.00'1 class, sees reason to believe that any person within the local limits
of his jurisdiction has committed without such limits whether
within or without British India) an offenco which cannot, under
the provisions of sections 177 to 18 i (both inclusive), or any other
law for the time being in force, be inquired into or tried within
such local limits, but is under some law for the time being in force
triable in British India, such Magistrate may inquire into the
Magistrate's offence as if it had been committed within such local limits, and
Smwtlure °" compel such person in manner hereinbefore provided to appear
bef re him, and send such person to the Magistrate having juris
diction to inquire into or try such offence, or, if such offence is
bailable, take a bond with or without sureties for his appearance
before such Magistrate.
{2) W hen there are more Magistrates than one having such
jurisdiction »ad the Magistrate acting tnder this section cannot
Ss 186-187 ] Proceedings in Prosecutions. 233
satisfy himself as to the Magistrate to or before whom such person

should be sent, or bound to appear, the case shall be reported for
the orders of the High Court.
[13 (Act XXI of 187D —Extradition Act). Whenever any per- [Matfutnuenmy
son accused or suspected of having committed an offence out of British j",^,1 wummt
India is within the local limits of the jurisdiction of i Magistrate in
British India, and it appears to such Magistrate that the Political Agent ii-mn* i-ommit-
for any State could, under the provisions of section 11, issue a warrant^} 0fl jirJi'ish
for the arrest of such person, or that the persons for the time being ad- India.]
ministering the ext'cutive government of any p:irt of the dominions of
Her Majesty or the territory of any foreign Prince or State could demand
his surrender, such Magistrate nixy, if lie thinks fit, issue a warrant for
the arrest of such person, on such information or complaint, and such
evidence as would, in his opinion, justify the issue of such a warrant
if the offence had been committed within the loisal limits of his juris
diction.
Any Magistrate issuing a warrant under this section shall, when [Maiistrate to
the offence appears or is all -gel to have b-?n committed in a State for >"f"r"> Political
which nine is a Political Ageu', send immediate information ot his Government.]
proceedings to suidi Agent, and in other cases sliall at once report his
proceedings to the Local Government J
[Ifi (Act XXI of 1879 —Extradition Act). No person arrested [Person am-aied
on a warrant issued by a Magistrate under section 15 shall be detained Vft.-r'0 'certain
more than two months from the date of his arrest, unless within such J,'('ê'J ,"^,1'™;
period the Magistrate receives a warrant under section 11 from the
Political Agent for any State for the delivery of such person, or an
order with reference to him under section 14- from the Governor-General
in Council, or Local Government, or such person is, in accordance with
law, delivered up to sonn foreign Prince or State,
At any time before the receipt of such a warraut or order, the Magis
trate, if he thinks fit, may, and the Magistrate if so directed by the Local
Government shall, discharge the accused person.]
187. (i ) If the person has been arrested under a warrant Procedure
issued under section 180 by a Magistrate other than a Presidency Sucdi.y«™^
Magistrate
© or District Magistrate,' such M-.iaistratc
r) shall send the *'""«<» '
trill".
pers >n arrested to the District or Subdivisional Magistrate to
whom he is subordinate, unless the Magistrate having jurisdiction
to inquire into or try such offence issues his warrant for the arrest
of such pers >n, in which case the porson arrested sliall be delivered
to the police-officer executing sncli warrant, or shall be sent t j the
Magistrate by whom such warrant was issued.
(2) If the offence which the pers >n arivsted is alleged or
suspected to have committed is one which may be inquired into
or tried by any criminal Court in the. same district other than
that of the Magistrate acting under section 18t>, such Magistrate
shall send such person to such Court.
Native Indian The accused was Taluti of Kalol in British territory. His family be-
Majraty-Orten" longed to the village of Bakrol in the Baroda State. IIis father entered the
committed by service of the British Government and lived almost entirely "at Kalol, but he
Brit?itf" fiidfa— ôes m,t aPPoar to have given up his intention of returning to his family
Jurisdiction of residence at Bakrol. The accused was born at Dubhai in the Baroda territory.
IiXato'tn^''-!' IIe Wtts Survey
an offence? UC Revenue educatedDepartment
partly at in
Kalo1
the antl
Panchpartly at Baroda.
Mahals. He entered
His services were lent the
by
the British Government to the State of Cambay. lie was charged with taking
bribes while serving at Cambay. He was tried and convicted by the first-
class Magistrate of Ahmedabad within whose jurisdiction he was found and
arrested. The Sessions Judge reversd the conviction, on the ground that the
Magistrate had no jurisdiction to try the accused. Held, that the accused
was not a " Native Indian Subject of Her Majesty," within the meaning of
section 188 of the Code of Crimin il Procedure, 1882, and though as a "ser
vant of the Queen " he was subject to punishment under section 4 of the
Indian Penal Code, the Magistrate of Ahmedabad, in whose jurisdiction he
was "found," had no jurisdiction under that section to try him for an offence
committed in a foreign State. Per Parsons, J.—The expression "Native
Indian Subject of Her Majesty " in section 188 of the Code, 1882, must be
construed strictly, and cannot be held to include "Servants of Her Majesty."
Queen-Empress v. Natwarai, I. L. Ii., 16 Bom., 178 (18!>1).
Sde'in "forei'n A D'Htl'iot Magistrate instituted criminal proceedings in British India
territory—Trial against a Native Indian subject of the Queen, in respect of offences under see-
without rertifl- tions 419, 407 and 114 of the Indian Penal Code, said to have been committed
tteal°Ygent. °>' n'm ln French territory, without a certificate under section 188 of Crimi
nal Procedure Code, 1882. The accused was committed to the Sessions Court.:
Held, although the District Magistrate was the Political Agent who might
have certified underCriminal Procedure Code, section 188, that the proceedings
were void for want of the certificate, and the commitment should be quashed.
Queen-Empress v. Kathaperwnal, I. L. K., 13 Mad., 423 (1889).
Jurisdiction of The Civil and Military Station of Bangalore is not British territory, but a
Forapi C°jl>ri7- Part of the Mysore State> and. tue G,xl° ojE Criminal Procedure, 1882, is in force
diction Act, IS79 therein by reason of declarations made by the Governor-General in Council in
^«hUJiiIh'-("t«Bin exen''!ie Powers conferre 1 by the Foreign Jurisdiction and Extradition Act,
Bangalore-Jus- 1871). Justices of the Peace for the State of Mysore are also Justices of the
tices of the Peace for Bangalore, and both the Civil and Sessions Judge and the District
Peace lor My Magistrate of Bangalore being such Justices of the Peace, are, by virtue of
section (! of the said Act, subordinate to the High Court at Madras. In re
Hayes, I. L. R., 12 Mad., 39 (1888).
Liability of Na- The accused were charged under section 407 of the Indian Penal Code
tive Indian sub- with committing criminal breach of trust in respect of certain property en-
comm'i°ttedIenout trusted to then as carriers. They were all Native Indian subjects of Her
of British India. Majesty. The offence was alleged to have been committed in Portuguese
territory, and they were found in a place in British territory. Held, that under
section 188 of the Criminal Procedure Code, 1882, the accused could be tried
in the place where they were found. Queen-Empress v. Daya Dhima, I. L.
R., 13 Bom., 147 (1888).
Jurisdiction of The Civil Station at Rajkotis not part of British India within the meaning
ttXlud'ia omi of Statutes 21 am' 22 vic-> G,mP- 106- Where the accused, a subject of a Native
offences com- State, committed theft at Uajkot Civil Station, and was found in possession of
niittcd out of t|le stolen property at Thana,— Held, that as the offeuce was not committed in
Bajkot. British India, and as the accused was the subject of a Native State, the Ses
sions Court at Thana had no jurisdiction to try the accused for theft, under
section 381 of the Indian Penal Code. But it was competent to try him for
dishonest retention of stolen property under section 410 of the Indan Penal
Code as amended by Act VIII of 1882. Queen- Empress v, Abdul Latif
Vuhtd Abdul Rahimun, I. L. R., 10 Bom., 18G (1885).
S. 1 88.] Proceedings in Prosecutions. 235
B entrusted with rice at M (a port in Bitisli India) for conveyance to C Conversion of
(also a port in British India), took the rice to G, a port in foreign territory, and £m CTitnfstedto
there sold it. He was convicted at M of criminal breach of trust as a carrier be cnrried from
under section 407 of the Indian Penal Code. Held, that the Sessions Court at J™L£ a ftritish
M had no jurisdiction to try the offence under the Code of Criminal Procedure, " n
1872. Held, also, that no offence was committed on the high seas so as to
give the Court jurisdiction under 12 and 13 Vic, Cap. 'JO, extended by 23 and
24 Vic, Cap. 88. Bapu Duldi v. The Queen, I. L. R., 5 Mad., 23 (1882).
A Native Indian subject of Her Majesty committed an offence (viz., theft Jurisdiction —
in a dwelling-house), in the territory of a Native State in alliance with Offence in 'or-^
Her Majesty, and was discovered in the territory of another Native State in ExtauliUon—
alliance with Her Majesty, and from there brought down or came of his own Native Indian
accord to Ahmedabad. A certificate was granted by the Political Agent that '"''J00'-
the offence ought, in his opinion, to be inquired into in Britisli India. At
Ahmedabad a preliminary inquiry was held by a Magistrate, who committed
the accused for trial by the Court of Session. Held, that the Sessions Court at
Ahmedabad was competent to try the offence committed in foreign territory
as if it had been committed in the Ahmedabad District under section 'J of the
Foreign Jurisdiction and Extradition Act XXI of 1879, for when the accused
was brought from foreign territory to Ahmedabad he was " found " at a place
in British India within the meaning of the section. The expression was
found " used in this section must be taken to mean not where a person is dis
covered, but where he is actually present. Empress v. Mayan Lai, I. L. K ,
i> Bom., 022 (1882).
Held (STUART, C. J., dissenting), that a Native Indian subject of Her Majes- Foreign Juris-
ty, being a soldier in Her Majesty's Indian Army, who committed u murder in diction and Ex-
Cyprus while on service in such army, and who was accused of such offence at Ljjj'lfi'u'v of Nil-
Agra, might, under section 9 of Act XI of 1872, be dealt with in respect of tive Indian Bri-
Buch offence by the criminal Courts at Agra, Cyprus being a " Native State" J^mi'e'conim?!
in reference to Native Indian subjects of Her Majesty, within the meaning of ted in Cyprus—
that Act. Per Stuart, C. J.—The power of the Governor-General of India in " Native State"-
Council to make laws for the trial and punishment in Britisli India of offences (Y^fon Articles
committed by Britisli Indian subjects in British territories other than British of War). Articles
India discussed. A Division Court of the High Court ordered the Magistrate Lcona!™"-
who had refused to inquire into a charge of murder on the ground that he tion of sentence
had no jurisdiction to inquire into such charge, considering that the Magistrate of death,
had jurisdiction to make such inquiry. The Magistrate inquired into the
charge and committed the accused person for trial. The Court of Session
convicted the accused person on the charge and sentenced him to death. The
proceedings of the Court of Session having been referred to the High Court
for confirmation of the sentence, the case came before the Full Court. Held,
per STUART, C. J., SPANKIE, J., and Oldfikld, J., that in determining whether
such sentence should be confirmed, the Full Court was not precluded by the
order of the Division Court from considering whether the accused person had
been convicted by a Court of competent jurisdiction. Empress of India v.
Sarmukh Singh, I. L. 15., 2 All., 218 (1870).
188. When a Native Indian subject of II er Majesty com- û^tfS;
mits
... Tanj. offence at any
J place
1 without and beyond
J the limits of Bri- offences
mitted outcom- of
tlSn India, or British India.
(a) when any British subject commits an offence in the ter
ritories of any Native Prince or Chief in India, or
(b) when a servant of the Queen (whether a British subject
or not) commits an offence in the territories of any Native Prince
or Chief in India,
he may be dealt with in respect of such offence, as if it had

been committed at any place within British India at which he may
be found :
&°'"rti"fv £ Provided that no charge as to any such offence shall be in-
of inquiry into quired into in British India unless the Political Agent, if there is
one, for the ten-it »ry in which the offence is alleged to have been
committed, certifies that, in his opinion, the chargo ought to be
inquired into in British India ; and. where there is no Political
Agent, the sanction of the Local Government shall be required :
Provided, ul-o, that any proceedings taken against any person
under this section which would be a bar to subsequent proceed
ings against such person for tne same offence if such offence had
been committed in ii itish India shall be a b r to further proceed
ings against him under th» Koroign Jur sdictiou and Extradition
Act, * 187!' in respect of the same offence in any territory beyond
the limits of Br.tish India.
rArrost nnd re- m (Act XXI of 1879—Extradition Act). When an offence
m •» other I'miiHas been committed, or is supposed to have been commit; "d, in any Mate
HoT>P "ubjcHs "b':l'i'st the law of such State by a person not being a European British
csrupni into subject, and such person escapes into or is in British India, the Political
nU" "' " Agent for such State may issue a warrant for his arrest and delivery at
a place and to a person to be named in the warrant —
it such Political Agent thinks that the offence is one which ought
to he inquired into in such State ;
and if the act said to have been done would, if done in British In
dia, have constituted an offence against any of the sections of the
Indian Penal Code mentioned in the schedule hereto annexed, or under
any other section of the said Code, or any other law which may,
from time to time, be specified by the Governor-General in Council
by a notification in the Gazett* of India.']
M«jcutionnot*"d C12 (Act XXI of 1879—Extradition Act). Such warrant may
warrant j bo directed to the Magistrate of any district in which the accused per
son is believed to be, and shall be executed in the manner provided by
the law for the time being in force with reference to the execution
of warrant ; and the accused person, when arrested, shall be forward
ed to the place, ami delivered to the officer named in the war
rant.]
[Political .\cont [18 (Act XXI of 1870—Extradition Act). Such Political Agent
p"osl> ofcaMôr may either dispose of the case himself, or, if he is generally or specially
makp over per- directed to do so by the Governor-General in Council or by the Go-
coun. °tor"fr?- vcrnor of the Presidency of Fort St. George in Council, or by the
»'•] Governor of the Presidency of Bombay in Council, may give over
the person so forwarded, whether he be a Native Indian subject of
Her Majesty or not, to be tried by the ordinary Courts of the
State in which the offence was committed.]
• Act No. XII of 187».
■ .• T14
u • (Act , , XXI
1 of/-. 1879—Extradition
1 • nAct). -i Whenevert <« requi-
, /• [Requisitions
f,,r extradition
sition is made to the Governor-General in Council or any Local Uo- i,y uiP eiecu-
veriiiiient by or by the authority of the persons For the time being adnii- ^'ViJii'isfi Pdo-
nistering the executive government of any part of the dominions of minion* or
Her Majesty, or the territory of any Foreign Prince or State, that any Fo,v'Kn Power.]
person accused of having committed an offence in such dominions
or territory should be given up, the Governor-General in Council
or such Local Government, as the ease may be, may issue an order
to any Magistrate who would have had jurisdiction to enquire into
the offence if it had been committed within the local limits of his
jurisdiction, directing him to enquire into the truth of such accusa
tion.
The Magistrate so directed shall issue a summons or warrant for
the arrest of such person, according as the offence named appears
to be one for which a summons or warrant would ordinarily issue : and
shall enquire into the truth of such accusation, and shall report thereon
to the Government by which he was directed to hold the said enquiry.
If, upon receipt of such report, such Governnmi*; is of opinion that the
accused person ought to be given up to the persons nuking such requi
sition, it may issue a warrant for the custody and removal of such ac
cused person and for his delivery at a place and to a persou to be
named in the warrant.
The provisions of section 10 shall apply to enquiries held under this
section.]
[15 (ActXXT of .187!) —Extradition Act). Whenever any person 'Miiostrate
accused or suspected of having committed an offence out of British m ;Vi",u*w"r"
India is within the local limits of the jurisdiction of u Magistrate > mi for arnwt
in British India, and it appears to .moh Magistrate that the Political ^'Jrhwi'l*
Agent for any -State could, under the provisions of section 11, i-sue a emumitted an
warrant, tor
. the arrest oti. such, person, 1or that the
■ persons lor the
■ tune offmco out of
liritisii India.]
being administering the executive government of any part of the
dominions of Her Majesty or the territory of any Foreign Prince
or State could demand his surrender, such Magistrate may, if he
thinks fit, issue a warrant for the arrest of such person, on such
information or complaint, and such evidence as would, iu his opinion,
justify the issue of such a warrant if the offence had been committed
within the local limits of his jurisdiction.
Any Magistrate issuing a warrant under this section shall, when [Magistrate to
the offence appears or is alleged to have besn committed in a State j('J°™0ôjo™|
for which there is a Political Agent, semi immediate information of his Government.]
proceedings to such Agent, and in other cases shall at once report his
proceedings to the Local Gov ernment.]
The absence of the certificate of the Political Agent required by section Kidnapping
188 of the Code of Criminal Procedure, 1882. is au absolute bar to the trial '"^jn,,,^'"^'1
of a case to which the provisions of that section upply. Semble, that the oricncornnimit-
oltence of kidnapping from lawful guardianship punishable under section 303 t<-il outsido Bri-
of Act No. XLV of 1860 is not a continuing offence. Queen-Empress v. Ram
Sundar, I. L. K., 19 All., 109 (1890). Cortiseate of
Political Agent.
Abetment in An abetment in British India by a British subject of an offence commit-

^'ffen In<li*rn>f inVforeign territory is not an offence punishable under the Indian Penal Code,
mittol'i!™orei™n iUK' cannot, therefore, be tried by a Court in British India. The accused, a
territory, not an Native Indian subject of Her Majesty, was committed to the Court of Sessions
the Penal Code' ll0et tinff the commission of murder or of rioting under sections 302 and 147
of the Indian Penal Code. The alleged abetu erit consisted of words spoken
in British territory by the accused, inciting certain Portuguese subjects to kill
one Bhana if he attempted to remove the produce of certain lands situate in
the Portuguese territory of Daman. A disturbance afterwards occurred at
Daman in connection with this matter, in which one man was killed and an
other wounded. Thereupon the Governor-General of Portuguese India moved
the Government of Bombay to bring the accused to justice as the instigator
of the murder. The Government of Bombay being of opinion that section
188 of the Code of Criminal Procedure, 1882, was applicable to the case,
passed a Resolution in the Political Department, directing the District Magis
trate to take the necessary action in the matter. The District Magistrate there
upon committed the accused to the Court of Session on a charge of abetment
of murder or of rioting. Held, quashing the commitment that the alleged
abetment was not an offence punishable under the Indian Penal Code, and
that, therefore, the Sessions Court had no jurisdiction to try the accused.
Held, also, that section 188 of the Code had no application to the present ease,
the alleged offence of abetment not having been committed outside British India.
Queen-Empress v. Ganpat Rao Ramchandra, I. L. H., 19 Bom., 105 (1894).
Native Indian The accused was Talati of Kalol in British territory. His family belonged
subject of Her to the village of Bakrol in the Baroda State. His father entered the service
commifted^bv °^ "1C British Government and lived almost entirely at Kalol, but he does not
an alien outside appear to have given up his intention of returning to his family residence at
?urisdi v"d'a~f Bakrol. The accused was born at Dubhai in the Baroda territory. He was
CourtsTnBritish educated partly at Kalol and partly at Baroda. He entered the Revenue Survey
India to try such Department in the Panch Mehals. His services were lent by the British Govern-
an offence. ment to the State of Cambay. He was charged with taking bribes while
serving at Cambay. He was tried and convicted by the Bret-class Magistrate
of Ahmedabad within whose jurisdiction he was found and arrested. The
Sessions Judge reversed the conviction, on the ground that the Magistrate
had no jurisdiction to try the accused. Held, that the accused was not a
"Native Indian subject of Her Majesty," within the meaning of section 188
of the Code of Criminal Procedure, 1882, and though as a " servant of the
Queen" he was subject to punishment under section 4 of the Indian Penal
Code, the Magistrate of Ahmedabad, in whose jurisdiction he was " found,"
had no jurisdiction under that section to try him for an offence committed in
a foreign State. Per Parsons, J.—The expression " Native Indian subject of
Her Majesty " in section 188 of the Code must be construed strictly, and
cannot be held to include " servants of Her Majesty." (Jurat Empress v.
Nattearai, I. L. R., 16 Bom., 178 (1891).
Offenceconimit- A District Magistrate instituted criminal proceedings in British India
ted in foreiftn against a Native Indian subject of the Queen, in respect of offences under
w "houV cert'ifl! 8e('tions 419, 467 and 114 of the Indian Penal Code, said to have been com-
cate of the Poli- mitted by him in French territory, without a certi6cate under section 188 of
tical Aitont. the Criminal Procedure Code, 1882. The accused was committed to the Sessions
Court. Held, although the District Magistrate was the Political Agent who
might have certified under Criminal Procedure Code, section 188, that the
proceedings were void for want of the certificate, and the commitment should
be quashed. Queen-Empress v. Kathaperumal, I. L. 1!., 13 Mad., 423 (1889).
Liability of The accused were charged under section 407 of the Indian Penal Code with
Native Indian committing criminal breach of trust in respect of certain property entrusted
oneiin?s com- to tncm as carrierB- T,iey were 11,1 Native Indian subjects of Her Majesty,
mitted out of The offence was alleged to have been committed in Portuguese territory, and
British India, they were found in a place in British territory. Held, that under section 188
of the Criminal Procedure Code, 1882, tlie accused could lie tried in the place
where they were found. Queen-Empress v. Da>/a Bhiimi, I. L. R., 13 Bom.,
147 (1888).
The Civil and Military Station of Bangalore is not British territory, J»nsawionô(
but a part of the Mysore State, and the Code of Criminal Procedure, 1882, is ForcjKn Juris-
in force therein by reason of declarations made by the Governor-General in diction Act 1879,
Council in exercise of powers conferred by the Foreign Jurisdiction and Extra- British0"
dition Act, 1879. Justices of the Peace for the State of Mysore are also Jus- subjects in
tices of the Peace for Bangalore, and both the Civil and Sessions Judge and J,™^"™^,
the District Magistrate of Bangalore being such Justices of the Peace, arc, by pc*lce for
virtue of section 6 of the said Act, subordinate to the High Court at Madras. Mysore.
In re Hayes, I. L. B., 12 Mad., 39 (1888).
Certain persons, who were not proved to be British subjects, were found Dakaiti corn-
in possession, in a Native State, of property the subject of a dakaiti commit- j^ntcdor^"t Brjj
ted in British India. They were not proved to have taken part in the dakaiti, I'^honest "rem
and there was no evidence that they had received or retained any stolen pro- ceipt of stolen
perty in British India. They were convicted of offences punishable under }"ruJ',;,7\crrito-
scction 412 of the Penal Code. Held, that no offence was proved to have been ry.
committed within the jurisdiction of a British Court. Queen-Empress v.
Kirpal Singh, I. L. B., 9 All., 523 (1887).
The Civil Station at Rajkot is not a part of British India within the meaning Jurisdiction of
of Statutes 21 and 22 Vic, Cap. 106. Where the accused, a subject of a Native Courts in Bri-
State, committed theft at Rajkot Civil Station, and was found in possession offences1 com™'
of the stolen property at Thana : /fel l, that as the offence was not commit- mitted out of
ted in British India, and as the accused was the subject of a Native State, the ^j-J^ i'"1"1—
Sessions Court at Thana had no jurisdiction to try the accused for theft,
under section 381 of the Indian Penal Code. But it was competent to try
him for dishonest retention of stolen property under section 410 of the Indian
Penal Code as amended by Act VIII of 1882. Queen-Empress v. Abdul
Latif Valad Abdul Rahiman, I. L. R., 10 Bom., 186 (1885).
B entrusted with rice at -V (a port in British India) for conveyance to Conversion of
C (also a port in British India), took the rice to G, a port in foreign territory, ^^"^ftruScc"
and there sold it. He was convicted at .1/of criminal breach of trust as a to be carried
earner under section 407 of the Indian Penal Code. Held, that the Sessions •T0."1. »n<l.'".»
Court at M had no jurisdiction to try the offence under the Code of Criminal B0^'"h I"dlan
Procedure, 1872. Held, also, that no offence was committed on the high seas
so as to give the Court jurisdiction under 12 ami 13 Vic, Cap. 96, extended
by 23 and 24 Vic, Cap. 88. Bapu Daldi v. The Queen, I. L. R., 5 Mad., 23
(1882)
A Native Indian subject of Her Majesty committed an offence {viz., theft Offence in for-
in a dwelling-house), in the territory of a Native State in alliance with Her <*»» territory-
Majesty, and was discovered in the territory of another Native State in alii- Object "
ance with Her Majesty, and from there brought down or came of his own ac
cord to Ahmedabad. A certificate was granted by the Political Agent that the
offence o tght, in his opinion, to lie inquired into in British India. At Ahmed
abad a preliminary inquiry was held by a Magistrate, who committed the
accused for trial by the Court of Session. Held, that the Sessions Court at
Ahmedabad was competent to try the offence committed in foreign territory
as if it had been committed in the Ahmedabad district under section 9 of the
Foreign Jurisdiction and Extradition Act XXI of 1879, for when the accused
was brought from foreign territory to Ahmedabad he was " found " at a place
in British India within the meaning of the section. The expression " was
found " used in this section must be taken to mean not where a person is
discovered, but where he is actually present. Empress v. Mayan Lu1, 1. L. R.,
6 Bom., 622 (1882).
240 Proceedings in Prosecutions. [Chap, XV.
Liability ot Held (Stuart, C. i., dissenting), that a Native Indian subject of Her
Native
Bntish Indian Maieatv.
, J. »',' being° a ,Boldier in Her Majesty's
subject .. . J ,* Indian army,
11. who committod 1 a* mur-1
tor offence rum- der 111 Cyprus while on service 111 such army, and who was accused ot such
niittod iii C.v- offence at Agra, might, under section 'J of Act XI of 1*72. be dealt with in
en"e-Con'trmii- respect of such offence by the criminal Courts at Agra, Cyprus leiig a "Native
lion ot sentence State," in reference to Native Indian subjects of Her Majesty, within the
of deatii. meaning of that Act. Per Stuart, C J.—The power ofthe Governor-General
of India in Council to make laws for the trial and punishment in British India
of offences committed by British Indian subjects in British territories other
than British India discussed A Division Court of the High Court ordered
the Magistrate, who had refused to inquire into a charge of murder on the
ground that he hail no jurisdiction, to inquire into such charge, considering
that the Magistrate had jurisdiction to make such inquiry. The Magistrate
inquired into the charge and committed the accused person for trial. The
Court of Session convicted the accused person on the charge, and sentenced
him to death. The proceedings ofthe Court of Session having been referred
to the High Court for continuation of the sentence, the case came before the
Full Court, lli-l'l, per StcART, C. J., SPASK1E, J., and OLDFIELD, J., that, in
determining whether such sentence should be continued, the Full Court was
not precluded by the order of the Division Court from considering whether
the accused person had been convicted by a Court of competent jurisdiction.
Empress of India v. Harmukh Hintjh, I. L. li., 2 All., 218 (1879).
Power to direct 189. Whenever any snch offence as is referred to in section
nonfand^T*'" 188 is being inquired into" or tried, tin- Loctil Government may, if
I-eiveu in cfi-r° it thinks fit. direct that copies of depositions made or exhibits pro-
uencc. duced before the Political Agent or a Judical officer in or for
the territory in which such offence is alleged to have been com
mitted shall be received as evidence by the Court holding such
inqui y o: trial in any case in which such Court might issue a
commission for taking evi lence as to the matters to which such
depositions or exhibits relate.
B. — Conditions requisite jor Initiation of Proceedings.
SeTi™ Ma- 190. (/) Except as hereinafter provided, any Presidency

gistraies. " * Magistrate, District Magistrate or 8ubdivi>ional Magistrate, and
any other Magistrate specially empowered in this behalf, may take
cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such

offence ;
(6) upon a p dice-report of such facts :
(c) upon information received from any person other than a
po ice-officer or upon his own knowledge or suspicion,
that such offence has been committed.
(2) The Local Government, or the District Magistrate sub
ject to the general or special orders of the Local Government,
may empower any Magistrate to take cognizanc under sub sec
tion (/ >, clause (a) or clause (£<), of offences for which he may try
or commit for trial.
Ss. 1 89-19 1.] Proceedings in Prosecutions. 241
(3) The Local Government may empower any Magistrate of

the first or second-class to take cognizance under sub-section (J),
clause (c), of offences for which he may try or commit for trial.
191. When a Magistrate takes cognizance cf an offence un- Transfer or com-
der sub-section (/), clause (c). of the preceding section, the ac- plication of ac
cused shall, before any evidence is taken, be informed that he is en- cused
titled to have the case tried by another Court, and if the accused,
or any of the accused if there be more than one, objects to be 114
tried by such Magistrate, the case shall, instead of being tried by
such Magistrate, be committed to the Court of Session or trans
ferred to another Magistrate.
The complaint upon which under section 191 (c) of the Code of Criminal Blaj^{,ot5' *„om'
Procedure, 1882, a Magistrate may take cognizance of an offence may be o(?ence0ina"b8
made by any member of the public acquainted with the facts of the case, not made,
necessarily by the person aggrieved by the offence to which the complaint
relates. Farzand Ali v. Hanuman Prasad, I. L. R., 18 All., 466 (18%).
The complainant was Deputy Collector and first-class Magistrate of Bija- Falsely charging
pur. Certain petitions said to emanate from the accused were received by J)^^''^,^1.
Government charging the complainant with bribery and corruption. Govern- tory htatoinent
ment thereupon ordered Mr. Monteath, Collector and Magistrate of the district, mnd*Iî*e(j,efn
to enquire into the matter. Mr. Monteath enforced the attendance of the accused t]l'c cours<)oIan
by writing to the police, who brought the accused before him. In answer to offlcinl or De-
questions put to him, the accused denied having sent any petition to ^pri'v'ici?"-111
Government, but stated that he had paid a bribe to the complainant to secure Qualified privi-
the acquittal of his son, who was then on his trial on a charge of theft before
him. Mr. Monteath examined other witnesses and reported the result of
his enquiry to Government. Government permitted the Deputy Collector to
prosecute the accused, and he accordingly lodged a complaint against the ac
cused for defamation under section 500 of the Penal Code, in having stated to
Mr. Monteatli in the course of the enquhy that he (the complainant) had accept
ed a bribe from him The trying Magistrate was of opinion that the offence
fell under section 211 of the Penal Code. He had first framed charges both
under sections 211 and 500. But subsequently he struck out the charge of
defamation under section 500 and convicted the accused under section 211 of
making a false charge. On appeal, the Joint Sessions Judge was of opinion
that the charge under section 211 could not be maintained, as the accused had
nut made any ''false charge" to a Court or officer having jurisdiction to inves
tigate it. As regards the charge of defamation, he was of opinion that the fact
of bribery was not proved. But he held that in making the statement to Mr.
Monteath the accused had acted in good faith, uud that his case fell under
exception 8 to section 499 of the Penal Code, lie, therefore, reversed the
conviction under section 211 and acquitted the accused of defamation under
section 500 of the Code. Against this order of acquittal Government appealed
to the High Court Held, that the accused was guilty of defamation. Held,
also, that section 211 of the Penal Code had no application to the present case.
The accused was brought before Mr. Monteath against his will. He did not
make any complaint before that officer ; and though what he stated, in answer
to questions put to him, was defamatory, the imputations did not constitute a
" false charge " within the meaning of section 211, as he did not intend to set
the criminal law in motion.
Per Ran ade, J. — The words "falsely charging " in section 211 must be
construed along with the words which speak of the " institution of proceed
ings." These latter words are obviously used in a technical and exclusive sense,
and the same restricted sense must be given to the words which relate to a
16
false charge as implying a false complaint. Held, also, that in the absence of
sanction from Government, the enquiry held by Mr. Monteath, the District
Magistrate, was not a taking cognizance of the offence. Held, also, that as
Mr. Monteath was not sitting as a " Court " when he made the enquiry and
examined the accused, the accused was not entitled to claim the absolute pro
tection from a charge of defamation as a witness in a judicial proceeding. The
accused was only entitled to a qualified privilege depending on the exceptions
to section 499 of the Penal Code. Per Ra\a»e, J.—The High Court, in exer
cising jurisdiction in the matter of appeals against acquittals should confine its
exercise to the particular grounds of objection which are raised by Government
against the acquittal complained of. Queen-Empress v. Karigowda, I. L. R.,
19 Bom., 51 (1894).
Dismissal of As a general rule any person, having knowledge of the commission of an
Wit'hilrawiil or on°ence> mav 8e*' tne 'aw 'n motion by complaint, even though he is not person-
complainant in a a"v interested or affected by the offence. The exceptions to this rule, of which
warrant cise. sections 195 and 198 of the Criminal Procedure Code, 1882, are examples, are
(Msmwsnl'of1 exceptions created by Statute. There is nothing in the Code showing an inten-
complaint- tion to confine prosecutions to the persons directly injured. Where the offence
coniDlSn'— charged is a " warrant " and not a " summons " case, a Magistrate ought to
Complainant proceed with the enquiry or trial in spite of the withdrawal of the complain-
not a witness ant, if he finds the elements of an offence on the facts set forth in the com-
''"fusaUo0 °r plaint. Section 248 of the Code applies only to a " summons " case. Semble.
answer. —A complainant is not a witness punishable for refusal to answer under section
485 of the Code, or under section 179 of the Penal Code. In re Ganesh Nti-
rayan Sathe, I. L. R., 13 Bom., 600 (1889).
Third-class Ma- A Revenue officer sent a yadast to a third-class Magistrate, charging a
coitnf«inoe>ki,of cert'a'n Per8°n with having disobeyed a summons issued by the Revenue
ca*e'onnrcceipt officer. The third-class Magistrate thereupon tried and convicted the accused
of a tadiui from under section 174 of the Penal Code. The District Magistrate referred the
cer^ndconvict- ca8e on tae ground that the conviction was bad under section 530 (k) of the
ing accused Code of Criminal Procedure, 1882 : Held, that as the yadast amounted to a
unnii"1' e™" complaint within the meaning of section 4, although the complainant was
plainant ' not examined on oath as required by section 200, the conviction was not
illegal. Queen-Empress v. Monu, I. L. R., 11 Mad., 443 (1888).
False chartte— ^ Per80n having laid an information before the police, the police reported
Cognizance ofan the case as false; the informant then appeared before a Magistrate, asking
pSon*- Police*" *'iat t'"8 ca8e m'Snt ,,e investigated and his witnesses summoned. This
report—False application was refused, and the Magistrate after perusing the police report
"'"J1*8, i""0*;' passed an order directing him to be prosecuted under section 211 of the Penal
put'n'rsêiiqiur- Code. Held, that the application to the Magistrate was " a complaint "
injt into truth ol within the meaning of section 191 of the Criminal Procedure Code, 1882, into
plaTt"1 °0m" which tlle Magistrate was bound to have enquired. A Magistrate may take
cognizance under sections 291 and 292 of the Code of an offence brought to
his notice by a police report which affords ground for a suspicion that an
offence has been committed ; but as a matter of sound judicial discretion, a
Magistrate should not so proceed and direct that the person suspected be
tried until some person aggrieved has complained, or until he has before him
a police report on the subject based on an investigation directed to the offence
to be tried, and in cases of alleged false charges until it is clear that the
original charge has been either heard and dismissed or abandoned. And
before the order to prosecute for the false charge is made the person who
made the original charge should be offered an opportunity of supporting it or
abandoning it. Queen-Empress v. Sham LaiI, I. L. R., 14 Cal., 707 (1887).
Complaint- The use of the term " may take cognizance of any offence" in section
Magistrate, in- 191 of the Criminal Procedure Code, 1882, does not make it optional with a
take cogni/iiioe Magistrate to hoar a complaint, but refers rather to the action of the Magis-
of," meaning of. trate in taking cognizance of an offence in either of the specified courses in
S>. 191.] Proceedings in Prosecutions. 243
which the facts constituting the offence may be brought to his notice. He is
bound to examine the complainant and then can either issue summons to the
accused or order an enquiry under section 202, or dismiss the complaint under
section 203. Umer Ali v. Safer Ali, I. L. R., 13 Cal., 334 (1886).
Where sanction has been given under section 468 of the Code of Crimi- Sanction to pro-
nal Procedure, 1872, by a Deputy Magistrate to a person to prosecute another for ^]),£tr£tWJ{a.
bringing a false charge, and such sanction is not proceeded under, it is open to psirjte to pro-
the District Magistrate to take up the ease under section 142 without com- <«ed where pro-
plaint The Empress v. Nip-cha, I. L. R., 4 Cal., 712 (1878). Z"m™u
, of the sanction-
An order of a District Magistrate, directing the revival of certain criminal Amendment of
proceedings against the petitioners who had been discharged under section 21 5 of cm"e^
the Criminal Procedure Code, 1872, by a subordinate Magistrate after evidence Order of D>-
had beeu gone into, quashed as illegal and ultra vires As the case was one of jjjjj-fj ,l,.Jll,,er
improper discharge and came before the Magistrate under section 295 of the Revival "of i>ru-
Code, the proper and only course for him was to report it for orders to the ccediinw.
High Court, which, if of opinion that the accused were improperly dis
charged, might, under section 297, have directed a re-trial. In re Mohesh
Mislree, I. L 1 Cal., 282 (1876).
A Magistrate of a district has power, under section G8 of the Code of vato0liro«.-out,o"
Criminal Procedure, 1861, whether there be a private prosecutor or not, to order -uisc'imtve—
the arrest of a person who had been previously under trial by a subordinate Magistrate of a
Magistrate, and who had been discharged under section 225 of that Code. The ,8,r"'t-
powers given under sections 435 and 68 of the Code are distinct and independent
powers, the former providing for the revision of proceedings which have been
already commenced, and the latter for the institution of proceedings <1e novo.
In re Ramjoy Mozooindar, 14 W. R., 65 (1870).
A Magistrate cannot refuse a summons to a complainant, even in a case Compl mil -
in which the charge might have been laid at the police in the first instance, Summ '
but is bound, under section 66 of the Code of. Criminal Procedure, 1861, to
examine the complainant on outh, and pass orders on the case. A meer Maho
med v. G. Brass, 14 W. B., 36 (1870).
Section 68 of the Criminal Procedure Code, 1861, applies only to cases in Arre»t-Wsrra it
which the private individual, who is injured or aggrieved, or some one on his -Complaint—
part, does not come forward to make a formal complaint : and even in such 1Ul"u
cases the jurisdiction of the Magistrate to arrest requires for its foundation a
personal knowledge of the fact that an offence has been committed—know
ledge derived from testiniouy legally given before him. The report of the po
lice, or any statement not on oath or short of an actual formal complaint , is
not sufficient to give the Magistrate jurisdiction to issue a warrant. Under
section 77 of the Code and the corresponding section of the amended Act, a
Magistrate may issue a warrant to an unofficial person, but he can only do so
when he cannot obtain the assistance of the police, or when the urgency is
imminent. A commitment to hajut, before evidence is recorded, is illegal. The
Queen v. Surrendronath Roy, 13 W. R., 27 (1870).
By section 68 of the Code of Criminal Procedure, 1861, a Magistrate can Procedure-Com-
take cognizance of an offence, without any complaint, only when it has come EljrrV"ilt*"/i?l—
to his knowledge that such offence has been committed. A gratuitous suspicion r>ctentkvi of nc-
or a belief founded on private information contained in an anonymous petition tST1^!iev7
is not knowledge. A Magistrate is bound to disclose the information, private dem-âWiV'to
or otherwise, on which he acts, and issues warrants for the arrest of the ac- the Rtu!«7 Po
etised. The warrant which a Magistrate is empowered to issue under section {^""i'viden"
68 is not a warrant of committal, and does not justify detention of the party —Coniroirwijnt
arrested for any longer period than is necessary for his production before the ~■'""■flMioi.
Magistrate, and as soon as the party has been brought before the Magistrate,
the warrant is exhausted. A fresh warrant under section 222 or section 224
must be issued if the accused is to be committed or to be detained further.

Before committing an accused person to jail, otherw ise than for mere temporary
custody, the Magistrate must be satisfied on evidence that some case is made
out against the prisoner, or that there are reasonable grounds for believing that
he has been guilty of the offence imputed to him Section 188 of the Code
empowers a Magistrate to issue a warrant against a witness, only when, after
a reasonable enquiry, he believes that a particular wituess will not attend volun
tarily. It does not authorise the issue of warrants by wholesale in lieu of
summonses. A warrant under section 188 is a warrant of arrest under section
76 in form B, and not in form C. In permitting bail to be given by an
■ accused poison, a Magistrate has no right to impose conditions so as to throw
difficulties in the way of the accused procuring bail. The rule which lays it
down that witnesses cannot be examined as to information given by them to
the Government for the discovery of offenders is confined to offences against
the State, or for breach of the Revenue laws, and does not apply to cases
where the information has been communicated to a Magistrate, and acted on
by him in his capacity as Magistrate. A police-officer's report, though not
evidence under section 155 of the Code, of the facts stated therein, may be
evidence to contradict or explain his evidence as given before a Magistrate,
and an accused has a right to cross-examine the policeman as to the contents
of such report, and to call for its production. Where an accused has been
committed for trial to the Sessions, and has given in a list of his witnesses, the
Magistrate is bound, subject to section 228 of the Code, to summon the wit
nesses to appear before the Sessions Court. Section 227 is imperative, and
does not leave it open to the Magistrate to prevent a prisoner from reserving
his defence for the Sessions ; while section 207 merely gives a Magistrate a
discretion to take evidencefor the defence. A Magistrate cannot, under section
36 of the Code, make over to any other Judicial officer a case originally taken
up by himself, but where a Magistrate has originated a proceeding in a case
so far as to issue a warrant of arrest, he may decline to proceed further, and
may direct the injured party or a police-officer, or he may himself proceed by
complaint under section 66, before any other Magistrate having jurisdiction.
He is not bound to proceed in a case in which he finds it necessary to take up
on himself the office of an active prosecutor. The Queen v. Kallee Sircar,
15 W. R., 1 (1870).
Jurisdiction— _ A Magistrate can take cognizance of an offence under section 174, Penal
tiire—Imimto- Code, committed against his own Court. An order of forfeiture under section
rial error of pro- 184, Code of Criminal Procedure, 1861, if substantially legal, cannot be disturb-
ccdurc. eci £or an immatcrial error of procedure. Queen v. Giojvn Misser, 8 W. B.,
61 (1867).
Transfer of cases 194. (1) Any Chief Presidency Magistrate, District Ma
ny Magistrates. gistrate or S u bdivisional Magistrate may transfer any case, of
which he has taken cognizance, for inquiry or trial, t > any Magis
trate subordinate to him.
(2) Any District Magistrate may ompnver any Magistrate
of the first-class who has taken cognizance of any case, to transfer
it for inquiry or trial to any other specified Magistrate in his dis
trict who is competent under this Code ti try the accused or com
mit him for trial ; and such Magistrate may dispose of the case
accordingly.
Transfer ofcri- When the transfer is from the Court of one District Magistrate to the
minaf case by Court of another District Magistrate, it will be understood that unless the con-
-fnSrpreUtion trary is directly expressed, the Magistrate of the Court to which the transfer
of order. is made has power and jurisdiction to apply section 192 of Act X of 1882, and
S< 192.] Proceedings in Prosecutions. 245
to transfer the case to the Court of any Magistrate subordinate to him who
may be competent to try it. Queen-Empress v. Mata Prasad, I. L. B., 19
All., 249 (18«7).
Section 192 of the Criminal Procedure Code, 1882, does not authorise a Cattle Trespass
District Magistrate to transfer for trial to a subordinate Magistrate cases kQ1
which are not within the powers of that Magistrate to try either under Bee- (cisUate^ttaer*'
tion 28 of the Code or under some special or local law. A District Magistrate tha" the Ma5is;
e-uinot transfer to any Magistrate cases under section 20 of the Cattle Trepass '"'^cikô-
Act (I of 1871), which are triable only by the two classes of Magistrates FowerofDis-
specihed in that section. An order awarding compensation under section 22 "trimMer*"*'8
of the Act passed by any other Magistrate is illegal, and cannot be cured by cases to a sub-
the provisions of section 52 ', or section 537 of the Code. Iiaahu Sinah v. ordinate
Abdul Wahab,l. L. R., 23Cal., 442 (1896). Magistrate.
Magistrates of districts should exercise the powers conferred on them by Magistrate ot
section 47 of the Code of Criminal Procedure, 1872, only when it is absolutely p^we^'to^wUli-
necessary for the interests of justice that they should do so ; and when one draw or refer
of the parties to a case applies to have it withdrawn from the Magistrate en-
quiring into or trying it and referred to another Magistrate, the Magistrate of
the district should give the other party notice of such application, and an op
portunity of showing cause why such application should not be granted.
Where the accused in a criminal case applied to the Magistrate of the dis
trict, after the evidence of the complainant and his witnesses had been taken,
to withdraw such case from the subordinate Magistrate trying it and to try it
himself, such application not containing any sufficient reason justifying the
granting of the same, and the Magistrate of the district, without giving the
complainant notice of such application or opportunity of showing cause
against it, and without stating any reason, withdrew such case from the sub
ordinate Magistrate trying it and referred it to another for trial, the High
Court set aside the order of the District Magistrate and of the Magistrate to
whom such case was referred for trial, and directed the Magistrate from whom
it had l>een withdrawn to proceed with it. Umrao Singh v. Fakir Chand, I.
L. R, 3 All., 749(1881).
The jailor of a district jail being accused by one of the jail clerks of ê^ln"*'—frre'-
falsifying his accounts and defrauding the Government, the matter was hilarities—
enquired into by the District Magistrate, and the jailor was, by the Effect of waiver
Magistrate's order, placed on trial before a Bench of Magistrates, con- yûaTifyfng
sisting of the District Magistrate himself, L, the Officiating Superin- interest of
tendent
and his of the Jail,
pleaders wereandalleged
three other Honorary
to have stated Magistrates. The prisoner '"JjKreirfSice.
before the commencement Rivm*
of the trial on being questioned that they had no objection to the composition
of the Bench, but after the charges had been framed, the prisoner's counsel
objected to the Bench as formed. The District Magistrate directed the Gov
ernment pleader to prosecute, and both the District Magistrate and L gave
evidence for the prosecution. After the case for the prosecution was closed,
two formal charges were drawn up, namely, that the prisoner had debited
Government with the price of more oilseed than ho actually purchased, and
that he had received payment for certain oil at a higher rate than ho credited
to Government. The moneys, the receipt of which were the subject of the
first charge, were obtained by the prisoners on the strength of certain vouchers
which he had induced L to sign as correct, and L had sanctioned the sale
at the rates credited to Government. Upon the prisoner's giving the names
of the witnesses he intended to call in his defence, L was deputed by his
brother-Magistrates to examine some of them who were connected with the
jail, in order " to guard against deviation," and the depositions so taken were
placed on the record, " to be used by either party, though not themselves, as
evidence." The prisoner was convicted. On a motion to quash the convic
tion,—Held, that L had a distinct and substantial interest which disqualified
him from acting as Judge. Held, further, that although a Magistrate is

not disqualified from dealing with a case judicially, merely because in his
character of Magistrate it may have been his duty to initiate the proceedings,
yet a Magistrate ought not to act judicially in a case where there is no neces
sity for his doing so, and where he himself discovered the offence and initia
ted the prosecution, and where he is one of the principal witnesses for the
prosecution. Held, further, that the recording the statements of the prisoner's
witnesses was irregular. Criminal proceedings are bad unless they are con
ducted in the manner prescribed by law, and if they are substantially bad, the
defect will not be cured by any waiver or consent of the prisoner. '1 he Queen
v. Bholanath Sen, I. L. R., 2. CaL, 23 (187G).
District Mairiv The case of a prisoner accused of the offence of attempting to cheat by
trote—Masis- personation was referred for trial by the District Magistrate to a Magistrate
tratf F. K— F. P., who, without a complaint being made to him, convicted and sentenced
Reference -
Jtiriadictinn. the prisoner. The conviction antl sentence were confirmed by the Sessions
Judge. On application to the High Court to annul the conviction, on the
ground that the Magistrate F. P. had no jurisdiction to try the case, the Court
refused the application, as the question of jurisdiction had not been raised
before the Sessions Court. Reg. v. Vishvanath Datdatrav, 4 Bom., (Crown
Cases) 33 (1867).
CogtUZ&IH'G of 193. (1) Except us otherwise expressly provided by this
courts "0/ so,. Code or by any other Law for the time being in force, no Court
•ion. 0f Session shall take cognizance of any offence as a Court of ori
ginal jurisdiction unless the accused has been committed to it by a
Magistrate duly empowered in that behalf.
(2) Additional Sessions Judges and Assistant Sessions Judges
shall try such cases only as the Local Government by general or
special order may direct them to try, or, in the case of Assistant
Sessions Judges, as the Sessions Judge of the division, by general
or special order, may make over to them for trial.
Withdrawal of Two pereonB J and U were charged with the murder of V* husband, and
conditional in the course of the police enquiry made certain statements to the police. They
or ^'»"ioif»°Wer were ên sen*' UP k}' the police to a Deputy Magistrate for enquiry. J made
Court to try three statements on the 28th of February, the 1st of March, and the 9th of
person not March, 1894, respectively, two of which were confessions, the third being a
committed withdrawal of such confessions. U also made two statements, on the 2nd and
9th of March, the first of which was a confession and the second a with
drawal thereof. On the 24th of April U was tendered a pardon, and was there
after treated as an approver, in which capacity she gave evidence against J.
J was then committed to the Court of Session to take his trial, U being sent up
as an approver. In the Sessions Court U resiled from her deposition before
the committing Magistrate, and was then and there treated as an accused
person, and placed on her trial with the other accused, and the deposition
aforesaid was put in as evidence. Both accused were convicted mainly on
their confessions, J of murder and U of abetment of murder. Field, that the
conviction of U was bad, the Court of Sessions having had no jurisdiction
to try her as she was never committed to that Court by any competent
Magistrate. Held, that the conviction of J was also bad—(1) Because Us
statement to the police was not admissible in evidence. (2) Because her
statements on the 2nd and 9th of March were not under the circumstances
admissible in evidence, as she was not being legally tried jointly with him foi
the same offence (3) That her deposition on the 24th of April was not
admitted in evidence, because, apart from other reasons, J had no opportunity
S. 1 93. J Proceedings in Prosecutions. 247
to cross-examine her. (4) Because Ts confession, under the circumstances,
was ot a free and voluntary admission of guilt. Held, on the whole case,
that independently of the aforesaid statements and confessions there was
not sufficient evidence to justify the conviction. Queen-Empress v. Jaaal
Chandra Mali, I. L. R., 22 Cal., 50 (1894).
Several persons were charged with dakaiti. While the case was pending Conditional
two of the accused made confessional statements ; afterwards a conditional i,nrd™ ,0 1'"-
pardon was tendered to them, and they were examined as witnesses by the prover, trial of—
Magistrate, and subsequently on behalf of the prosecution in the Sessions Court . Proof of confei-
to which the other accused were committed for trial. They there denied that inentioâe-
they had been taken as approvers, whereupon the Sessions Judge placed them eused.
in the dock, called on them to plead, and permitted the depositions made by
them before the Magistrate, but not their confessional statements, to be read
to the jury : Held, that the trial of the two persons, who had not been com
mitted to the Sessions Court, was ultra vires. Per curiam.—The Sessions
Judge committed an irregularity in refusing to place on the record the confes
sional statements of persons whom lus treated as accused. It is unfair to put
an approver, whose conditional pardon has been cancelled on trial, along with
other prisoners, in the course of whose trial such approver has given evidence.
Queen-Empress v. Rama Teoan,l. L. K., 15 Mad., 352 (1892).
Applications under Chapter XXXII of the Code of Criminal Procedure, Joint Judges—
1882, cannot bo referred to a Joint Sessions Judge under section 193, clause 2, unScTri'^'ter
of the Code, so as to make it competent for a Joint Sessions Judge to dispose xxxn—se»-
of them—a Joint Sessions Judge being strictly precluded from exercising any sio,,s Judge,
of the powers under Chapter XXXIIof the Code, and section 193, clause 2, J^dts'pSal
contemplating only cases for trial. Reference by the Sessions Judge of Sural, by Joint-
I. L.R., 9 Bom, 352 (1885). ' ' o^SVpliS
. . tions as cases
A Joint Sessions Judge cannot exercise the powers or the Sessions Judge transferred,
under Chapter XXXII of the Criminal Procedure Code, 1882. Accordingly, jur|,diction—
where a Magistrate had discharged certain accused persons, and the Joint Sch- Sessions Judge
sions Judge had subsequently, on the application or the complainant, ordered —Joint Sessions
their committal to the Sessions Court, the High Court set aside the proceed- charge l>yn*Ma-
ings of the Joint Sessions Judge, leaving it to the Sessions Judge of the dis- gisimte-Pow-
trict, if a proper case was made out, to order a committal, or dispose of the tions"jild 1^S"
application as he might think tit. In re Musa Asmal, I. L. B, 9 Bom., 164 direct commit-
(1884).
R having been committed by a Magistrate for trial by a Sessions Court Sessions trial—
on a charge, under section 202 of the Penal Code, of having intentionally Conviction upon
omitted to give information which he was legally bound to give respecting- "1^(1,,^ "oflv-lic*
a murder, pleaded, guilty, on his trial, to the charge on which he was com- not supported
initted. Upon the application of the Public Prosecutor, the Sessions Judge, foreî^jttVate
under protest on the part of the prisoner, added a charge, under sections 10'.) quashed,
and 201 of the Penal Code, of abetting C, a female co-prisoner charged with
having assisted in burying the body of the murdered person, required R to
plead to the charge and, having tendered a pardon to and examined C as a
witness, convicted and sentenced R to two years' rigorous imprisonment :
Held, that as there was no evidence before the Magistrate to support
the charge against R framed by the Sessions Judge, the action of the
Judge was ultra vires and the conviction on the added charge illegal. Held,
also, that inasmuch as the Sessions Judge considered R more culpable than C,
thu proper course would have been to have adjourned the trial, sent the
record to the Magistrate, and suggested an inquiry as to whether there
was ground for a more serious charge against 11. Semble.—The object of
restricting a Sessions Court from taking cognizance of any offence (except
as provided in sections 455, 472, 474 of the Code), unless the accused person
has been committed by a Magistrate, is to secure to the prisoner a preliminary
248 Proceedings in Prosecutions. [Chap. XV
inquiry which affords him an opportunity of becoming acquainted with the

circumstances of the offence imputed to him and enables him to make his de
fence. Mutirakal Kovilagatha Rama Varma Raja v. The Queen, I. L. R., 3
Mad., 351 (1881).
CommitinjM- The fact of a commitment being made by a Joint Magistrate, who
Joint Magin- is an officer exercising the powers of a Magistrate, is sufficient under section
sw!* Code°nof of Criminal Procedure, to enable the Sessions Judge to proceed
Criminal Proce- with the trial ; and it lies with the party impugning the correctness of the
<,ur9> proceedings to show that there was no jurisdiction. The Queen v. Komurood-
dee Sikhdar, 13 W. K., 17 (1870).
c<*ni«ar,ce of O Tue Hi8a ônrt may. take cognizance of any
offences by offence upon a commitment made to it in manner hereinafter pro-
Hiffh Court. yjjgfj
Nothing herein contained shall be deemed to affect the
provisions of any Letters Patent granted under the Indian High
Courts Act,* 1861, or any other provision of this Code.
informations by C^) (n) Notwithstanding anything in this Code contained, the
Advocate-Gene- Advocate-General may, with the previous sanction of the Gover
nor-General in Council or the Local Government, exhibit to the
High Court, against persons subject to the jur.sdictiou of the
High Court, informations for all purposes for which Her Majesty's
Attorney-General may exhibit informations on behalf of the
Crown in the High Court of Justice in England.
(6) Such proceedings may be taken upon evrey such informa
tion as may lawfully be taken in the case of similar informations
filed by Her Majesty's Attorney-General so far as the circum
stances of the case and the practice and procedure of the said
High Court will admit.
(c) All fines, penalties, forfeitures, debts and sums of money
recovered or levied under or by virtue of any such information
shall belong to the Government of India.
(d) The High Court may make rules for carrying into effect
the provisions of this section.
[Letters Patent- High Court of Judicature for the

North-Western Provinces.]
[Criminal Jurisdiction.]
'Ordinary ori- [15. And wc do further ordain that the said High Court of Judi
th* of iheisdic* cature f°r tne North-Western Provinces shall have ordinary original
Hi^h Court.] criminal jurisdiction in respect of all such persons within the said pro
vinces as the High Court of Judicature at Fort William in Bengal shall
have criminal jurisdiction ever at the date of the publication of these
• U and S5 Vic, C. 10*.
presents ; and the criminal jurisdiction of the said last mentioned High
Court over such persons shall cease at such date : provided, neverthe
less, that criminal proceedings which shall at such date have been
commenced in the said last-mentioned High Court shall continue
as if these presents had not been issued.]
[16. And we do further ordain that the said High Court of Judi- [Jurisdictional
cature for the North-Western Provinces, in the exercise of its ordinary 0 Pers0,1',•-I
original criminal jurisdiction, shall be empowered to try all persons
brought before it in due course of law.]
[17. And we do further ordain that the said High Court of [Extraordinary
Judicature for the North-Western Provinces shall have extraordinary °Jj1 jurindu™'
original criminal jurisdiction over all persons residing in places with- tion j
in the jurisdiction of any Court now subject to the superintendence
of the Sudder Nizamut Adawlut, and shall have authority to try at its
discretion any such persons brought before it on charges preferred by
any Magistrate or other officer specially empowered by the Government
in that behalf.]
[18. And we do further ordain that there shall be no appeal to the [No antral from
said High Court from any sentence or order passed or made in any ^Jj^^TL^j
criminal trial before the Courts of original criminal jurisdiction which iurisdiction-
may be constituted by one or more Judges of the said High Court, j^ve points "i
But it shall be at the discretion of any such Court to reserve any jioint ,,w 1
or points of law for the opinion of the said High Court.]
[19. And we do further ordain that, 011 such point or points [HUh Court to
of law being so reserved as aforesaid, the said High Court shall have point? <oF"lmw
full power and authority to review the case, or such part of it as reserved by one
1 j a' n j i 1 • , • . ■ or more Judires
may be necessary, and. finally determine such point or points of law, of the wiid High
and thereupon to alter the sentence passed by the Court of original Court^
jurisdiction, and to pass such judgment and sentence as to the
said High Court shall seem right.]
[20. And we do further ordain that the said High Court of Judi- [Appeals from
cature for the North-Western Provinces shall be a Court of appeal from ?"7™proii!S
the criminal Courts of the said provinces, and from all other Courts from *•*■]
which there is now an appeal to the Courts of Sudder Nizamut Adawlut
for the said provinces, and shall exercise appellate jurisdiction in such
cases as are subject to appeal to the said Court of Sudder Adawlut by
virtue of any law now in force.]
[21. And we do further ordain that the said High Court shall [Hearing of re
in; a Court of reference and revision from the criminal Courts, subject to a^revisiou'of
its appellate jurisdiction, and shall have power to hear and determine all criminal trials.]
such cases referred to it by the Sessions Judges, or by any other officers
now authorized to refer cases to the Court of Sudder Nizamut Adawlut
of the North-Western Provinces, and to revise all such cases tried by
any officer or Court possessing criminal jurisdiction, as are now
subject to reference or to revision by the said Court of Sudder Nizamut
Adawlut.]
250 Proceedings in Prosecutions. [Chap, XV,
[Higli Conn [22. And we do further ordftin that the said High Court shall
tranJ'erô/'tt' 'lave power to direct the transfer of any criminal case or appeal from any
case from one Court to any other Court of equal or superior jurisdiction, and also to
other. 1 direct the preliminary investigation or trial of any criminal case by any
officer or Court otherwise competent to investigate or try it, though
such case belongs in ordinary course to the jurisdiction of some other
officer or Court.]
Prosecution (or 195. (7) No Court shall take cognizance—
contempts of
lawful authori
ty of public ser (a) of any ofience punishable under sections 174 to 188
vants.
(both inclusive) of the Indian Penal Code, exoept with
the previous sanction, or on the complaint, of the public
servant concerned or of some public servant to whom he
is subordinate ;
Prosecution for (/.) of any offence punishable under sections 193, 194. 195,
certain offences 196, 199, 200. 205, 206, 207, 208, 209, 210, 211 or 228
against public
justice. of the same Code when such offence is committed in, or
in relation to, any proceeding in any Court, except with
the previous sanction, or on the complaint, of such
Court, or of seme other Court to which such Court is
subordinate ;
Prosecution for (c) of any offence described in section 468 or punishable
certain offences under sections 471, 475 or 476 of the same Code, when
relating todocu-
ments given in such offence has been committed by a party to any pro
evidence
ceeding in any Court in respect of a document produced
or given in evidence in such proceeding, except with the
previous sanction, or on the complaint, of such Court,
or of some other Court to which such Court is subordi
nate
(2) In clauses (b) and (c) of sub-section (/) the term "Court"
means a Civil, Revenue or Criminal Court, but does n"t include
a Registrar or Sub-Registrar under the Indian Registration Act, *
1877.
(3) Ihe provisions of sub-section (7), with reference to the
oft'onces named therein, apply also to the abetment of such offences,
and attempts to commit them.
Nature or mho (^) The sanction referred to in this section may be expressed
lion necessary. jn general terms, and need not name the accused person ; but it
shall, so far as practicable, specify the Court or other place in which,
and the occasion on which, the offence was committed.
(5) When sanction is given in respect of any offence refer
red to in this section, the Court taking cognizance of the case
may frame a charge of any other offence so referred to which is
disclosed by the facts.
• No. HI Of 1877,
(6) Any sanction given or refused under this section may •

be revoked or granted by any authority to which the authority
giving or refusing it is subordinate ; and no sanction shall remain
in force for more than six montbs from the date on which it was
given : provided that the High Court may, for good cause shewn,
extend the time.
(7) For the purposes of this section every Court shall be
deemed to be subordinate only to the Court to which appeals from
the former Court ordinarily he, that is to say:—
(a) where such appeals lie to more than one Court, the Ap
pellate Court of inferior jurisdiction shall be tha Court to
which such Court shall be deemed to ba subordinate ;
(0) where such appeals lie to a Civil and also to a Revenue
Court, such Court shall b3 deemed to be subordinate to
the Civil or Revenue Court according to the nature of
the case in connection with which the offence is alleged
to have been committed ;
(c) where 110 appeal lies, such Court shall ba deemed to be
subordinate to the principal Court of original jurisdic
tion within the local limits of whose jurisdiction such
first-mentioned Court is situ.ite
S. 172.—Absconding to ttvoiil service of summons or other proceeding from a
public servant.
S. 173.—Preventing the service or the affixing of any summons or notice, or
the removal of it when it has been affixed, or preventing a proclama
tion.
S. 174.—Not obeying a legal order to attend at a certain place in person or
by agent, or departing therefrom without authority.
S. 175.—Intentionally omitting to produce a document to a public servant
by a person legally bound to produce or deliver such document.
S. 176.—Intentionally omitting to give notice or information to a public ser
vant by a person legally bound to give such notice or information.
S. 177.—Knowingly furnishing false information to a public servant.
S. 178.—Refusing oath when duly required to take oath by a public servant.
S. 179.—Being legally bound to state the truth, and refusing to answer ques
tions.
S. 180.—Refusing to sign a statement made to a public servant when legally
required to do so.
S. 181.—Knowingly stating to a public servant on oath as true that which is
false.
S. 182.—Giving false information to a public survent in order to cause him
to use bis lawful power to the injury or annoyance of any person.
S. 183.— Resistance to the taking of properly by the lawful authority of a
public servant.
S. 184.—Obstructing sale of property offered for sale by authority of a public
servant.
2$2 Proceedings in Prosecutions. [Chap. XV.
S, 185.—Bidding, by a person under a legal incapacity to purchase it, for

property at a lawfully authorised sale, or bidding without intending
to perform the obligations incurred thereby.
S. 186.—Obstructing public servant in discharge of his public junctions.
S. 187.—Omission to assist public servant whon bound by law to give such
assistance.
S. 188.—Disobedience to an order lawfully promulgated by a public servant,
if such disobedience causes obstruction, annoyance or injury to per
sons lawfully employed, or causes danger to human life, health or
safety, etc.
S. 190.— Using in a judicial proceeding evidence known to be false or fabri
cated.
S. 199.—False statement made in any declaration which is by law receivable
as evidence.
S. 200. —Using as true any such declaration known to lie false.
S. 205.—False personation for the purpose of any act or proceeding in a suit
or criminal prosecution, or for becoming bail or security.
S. 206. —Fraudulent removal or concealment, etc., of property to prevent its
seizure as a forfeiture, or in satisfaction of a fine under sentence,
or in execution of a decree.
S. 207.—Claiming property without right, or practising deception touching any
right to it, to prevent its being taken as a forfeiture, or in satisfac
tion of a fine under sentence, or in execution of a decree.
S. 208.— Fraudulently suffering a decree to pass for a sum not due, or suffer
ing decree to be executed after it has been satisfied.
S. 209.—False claim in a Court of Justice.
S. 210.—Fraudulently obtaining a decree for a sum not due, or causing a
decree to be executed after it has been satisfied.
S. 211. —False charge of offence made with intent to injure.
S. -;28.—Intentional insult or interruption to a public servant sitting in any
stage of a judicial proceeding.
S. 463.- Forgery defined.
S. 471.—Using as genuine a forged document which is known to be forged.
S. 475.—Counterfeiting a device or mark used for authenticating documents
described in section 467 of the Indian Penal Code, or possessing
counterfeit marked material.
S. 476.—Counterfeiting a decree or mark used for authenticating documents
other than those described in section 467 of the Indian Penal Code,
or possessing counterfeit marked material.
Sanction to pro- ^ Magistrate in deciding whether to sanction under Criminal Procedure
secute- Power Code, 1882, section 195, a prosecution for giving false evidence, has power to
outsit word" n0'1' an eu<lu'ry un(l record other evidence besides that in the case before him,
in the course of which the offence is supposed to have been committed. Queen-
Empress v. Molha, I L. H., 20 Mad., 339 (1897).
Supprinten- A decree-holder applied for execution of his decree against the judgment-
Court-Code'of1 êuto^• '^''e application was dismissed on the gronnd that the decree had
Civil Procedure kee" satisfied out of Court. The judgment -debtor then applied for and
ActofiSSi obtained sanction to prosecute the decree-holder under section 210 of the
S. 195.] Proceedings in Frosecutions.
Penal Code. Held, that tucli sanction must be revoked, because the decree
had not been caused to be executed, and therefore no offence under section
210 of the Penal Code had been committed Shama Cliaran Das v. Kasi
Naik, I. L. R., 23 Cal , 971 (1896).
Thgugh sanction to prosecute is necessary in cases falling under the Abetment of an
sections of the Penal Code set forth in section 195, Criminal Procedure Code, °iJ*"toe^^<"t
1882, no such sanction is required previous to the prosecution of a person unnecessary?" 6
charged with the abetment of such offences. Queen-Empress v. Abdul Kadar
Sheriff Saheb, I. L. It., 20 Mad., 8 (1896).
An order under section 195 of the Code of Criminal Procedure, 1882, Notice to show
sanctioning a prosecution for perjury, is not bad by reason of notice to show cause not a ne-
cause not having been issued previously to the person against whom such nary-^nctfon"
order is made. In an order under section 195 of the Code lapses, not having no? acted upon
teen acted upon within six months, that docs not bar the granting of fresh mo'nths-'lte9- ' 1
sanction on the same grounds if a sufficient reason for the delay is shown. ncwal of sane-
Hangar Ram v. Behari, I. L. R., 18 All., 358 (189«). ' tion-
A sanction to prosecute under section 195 of the Code of Criminal Proee- Sanction «Tant-
dure, 1882, pre-supposes an application for sanction, and where no such appli- b>' C o u r t
cation is made a Court ought not to take upon itself to grant sanction, but "a'tion"^ e*f n«
should take action in the manner provided by section 470 of the Code m»de by the
Tn re Benarsi Das,' I. L. K,' 18 All.,' 113 (1896).
v ' 1*™°" to whom
it » Kranted.
An application for sanction to prosecute for forgery or perjury must Necessary con-,
indicate precisely the document in respect of which forgery is said to have been Jj^j8 "j^"'''^™"
committed, or must set forth in detail the statements alleged to be false, tioil. *
showing the place where and the occasion on which such alleged false state
ments were made. Bulwant Singh v. Umed Singh, I. L. R., 18 All., 203
(1896).
For the purpose of granting or revoking a sanction to prosecute refused " C 0 u r t to
or granted under section 195, Act X of 1-82, an Assistant Collector of the oSrilTSie"'1,8
first-class is subordinate to the District Judge. Shankar Dial v. A. J/.
1'enables, I. L. R., 19 All., 121 (1896).
Certain documents were filed annexed to a petition in a suit pending be- J^^1 tlied""in
fore a Munsif, but were not given in evidence. The Mtinsif on suspicion that court- Order of
they had been tampered with held an enquiry and committed the petitioners commitment for
for trial by the Court of Session. Held, that it was a proper commitment ctlcnce^'in"^^-
under section 478 of the Criminal Procedure Co le, 1832. The words " any tion 478,
such offence" in that section means an offence referred to in section 195 of the 0'-
Code, and not an offence referred to in that section qualified by the circum
stances under which it is committed. Akhil Chandra l)e v. The Queen-Em
press, I. L. R., 22 Cal., 1004 (1895).
The complainant was directed to pay Rs. 50 ns compensation to the ac- Sanction to pro-
cused, or, in default, to suffer simple imprisonment for one month, under section J^rtofcom-
560 of the Code of Criminal Procedure, 1882, and sanction was also granted penmtion—lm-
to prosecute him for offences under sections 211 and 193 of the Pennl Code, prisonment in
Held, that if the Magistrate thought that this was a case in which a prosecu- mcnt ofcompen-
tion under sections 211 and 193 of the Penal Code should be sanctioned, he sation.
ought not to have taken action under the provisions of section 560 of the Code
of Criminal Procedure. Held, also, that the order for imprisonment in default
of payment of the compensation awarde l was illegal. Shib Kalh Chong v.
Sarat Chander Sarkar, 1. L. R., 22 Cal., 586 (1895).
254 Proceedings in Prosecutions. [Chap. XV-
Power of the Both the Sessions Judge and the District Magistrate are competent, under
tohlterierewlth 8ectifm 437 of the Criminal Procedure Code, 1882' to order a further enquiry ;
orders passed but the Sessions Judge has no jurisdiction to review an order made by the Dis-
*? tht ?'!irict trict Magistrate under that section refusing a further enquiry. It is open to
Fresh sanction, the Sessions Judge to refer the matter to the High Court under section 438. If
grant ot. after six months expire after the grant of sanction under section 195 of the Code,
moiitns°'from unc^ n0 prosecution is commenced under it within that time, it is not open to the
the date of the prosecutor to procure a fresh sanction and to institute proceedings upon such fresh
first sanction, sanction. The words " six months from the date on which the sanction was
given" must be taken to mean six months from the date on which it was given
in the first instance, and not from any subsequent date on which the purport of
the order might have been repeated. The Munsif, who tried the suit out of which
the application for sanction arose, refused tosanotion any prosecution ; the Mun
sif, who originally sanctioned the prosecution, was a different officer, while the
Munsif who gave the fresh sanction was neither the Munsif who tried the
case, nor the Munsif who sanetioupd the prosecution originally. Semble.—
Under these circumstances it is extremely doubtful whether the sanction was
such as is contemplated by section 195 of the Code. Darhari Matidar v.
Jagoo Lai, I. L. R., 22 Cal., 573 (1895).
C^rt^wfmt is *n matter8 relating to the grant of sanction to prosecute under section 195
a-Jurisdiction of the Criminal Procedure Code, 1882, a Court is regarded as " subordinate "
of the High to another Court where the latter is the Court to which appeals from the for-
©""gra'nY^sanc* mer ordinarily lie, i.e., lie in the majority of cases. Though the decree in the
tion in cases in present instance was appealable to " Her Majesty in Council, " still, as appeals
Hea'to "'Sot' ^rom "ie Court of the Recorder of Rangoon ordinarily lay to the High Court,
in the former was held to be subordinate to the latter Court within the meaning
Council"
the Court from
of the 0f the section. Maduray* Pillay v. H. T. Elderton, I. L. B.,' 22 Cal.,» 487 x(1895)
Recorder of The District Forest Officer applied by letter to the District Magistrate to
Rangoon. tgJgB such action as he deemed fit against one Subbaraya Pillai, who, for rea-
Application for sons stated by the District Forest Officer, was suspected of having abetted the
secuteÔffencc on°ence of giving false evidence in the course of proceedings instituted on
committed be- behalf of the Forest in the Court of a second-class Magistrate. The District
fore second- Magistrate had previously directed that all appeals from the second-class
-Court*to1™1* Magistrate should be heard by the Deputy Magistrate, but he passed an
which appeals order himself, whereby he (1) sanctioned the prosecution of Subbaraya Pillai,
Ariti"troni0by (2) Erected that it should take place in the Court of the Head Assistant Ma-
letter forsano gistrate : Held, (1) that the District Magistrate had no jurisdiction to sanction
tion to prose- the prosecution for the reason that he was not the ordinary appellate authority;
Magistrate's0' 00 that the second part of bis order was irregular for the reasons that it was
order sanction- not authorized by Criminal Procedure Code, 1882, section 195. and he had no
and prescrVbing jurisdiction to act under section 476, since the alleged offence was not brought
the Court in to his notice in the course of judicial proceeding. Quetn-Emprtu v. Sub-
which
cution the prose- baraya
should " Pillai. I. L. R., 18 Mad., 487 (1895).
v '
take place- Sanction to prosecute R for offence under sections 193 and 471 of the
Prosecution Penal Code committed in the course of a judicial proceeding was granted on
commenced the 5th September, 1893. and the prosecution was commenced before the Ma-
monthS»fterX gi8trilte on the 7th March, 1894, the 4th March l>eing a Sunday, and the 5th
grantingofsanc- and 6th Court holidays. R was committed to the Sessions. Held, that as sec
tion, the period tion 7 of Act I of 1887 does not apply to the Code of Criminal Procedure,
iiig^dose'hol^" 1882, and there is no provision of law by which the period provided by section
days. 195 during which a sanction may remain in force can be extended by reason
of the period expiring during Court holidays, the proceedings of the Magis
trate were without jurisdiction, and the commitment must be quashed. Held,
further, that section 537 of the Code was not intended to override the provi
sions of section 195, nor can it be said that there has not been a failure of
justice in the prosecution of a person after the period for which the sanction
was in force has expired. Raj Chunder Mozumdar v. Gutir Chunder Mo-
zumdar, I. L. R., 22 Cal., 176 (1894).
S« '95-] Proceedings in Prosecutions. 255
A sanction to prosecute for giving false evidence should specify clearly Requisites of a
the statement alleged to be false, so that the person sought to be charged may proper sanction,
be definitely informed what is the criminal act alleged against him. In re
Jivan Ambaida*, I. L. K., lit Bom., 362 (1894).
Where sanction to prosecute is granted in respect of one of the offences Sanction in res-
referred to in section 195 of the Code of Criminal Procedure, 1882, such J^p*,"^ commit
offence having been committed in the course of a civil suit, the valuation of led in the""" *
such civil suit is immaterial to the question of the Court to which an applica- course of a civil
tion under section 195 of the Code for revocation of the order granting sane- I'JJoo0/,,0™{"..^L
tion will lie. Ganga Dei v. Sher Singh, I. L. R., 17 All., 51 (1894). Appeal.
It is not an invariable rule that criminal proceedings should be stayed Hmm to attacli-
during the pendency of civil litigation regarding the same subject-matter, oit property -
Certain property was attached in execution of a decree Thereupon accused p^wei^tocom-
No. 1 applied to have the attachment raised, on the ground that he had pur- mlt the party
chased the property from the judgment-debtor under a sale-deed executed long "j1^1*
before the date of the attachment. In the summary inquiry which was made ness on a charge
under section 278 of the Code of Civil Procedure, 1882, he produced the sale- of forxeryand
deed, and accused No. 2 was called as his witness and supported his claim. ên^civiUutt"
The Subordinate Judge found that the deed was a forgery, and rejected the by claimant to
claim. Proceeding under section 478 of the Code of Criminal Procedure, j^'*^*1',^"
1882, he held the enquiry directed by that section, and committed both the property-Stay
accused to the Sessions Court on charges of perjury and forgery. During the ofcriminal pro-
pendency of the enquiry under section 478, the accused No. 1 filed a civil suit fn^c'ivfnitâ-'
to establish the genuineness of the sale-deed and set aside the attachment, tion.
Ho also applied to the High Court to quash the commitment or stay the
criminal proceeding pending the disposal of the civil suit. Held, refusing
the application, that the mere fact that a regular suit was filed to establish
the genuineness of the sale-deed was not a sufficient ground for quashing
the commitment, or for adjourning the trial pending the hearing of the civil
suit. Held, also, that the power given to a Civil Court under Chapter XXXV of
the Code of Criminal Procedure, 1882, to take action regarding •' any offence
referred to in section 195 " is not ordinarily restricted, in regard to offences
relating to documents, to such offences only when committed by a party to the
proceeding in which the document was given in evidence. It extends also to
such offences when committed by a witness of the party. In re Derji, I. L.
R., 18 Bom., 581 (1893).
A Registrar acting under section 73 of the Indian Registration Act, Registrar—

1877, is not a Court within the meaning of section 195 of the Code of "Court-'
Criminal Procedure. Queen-Empress v. Ram La!, I. L. R., 15 All., 141
(1893).
Under the general revisional powers conferred by section 439 of the Order directing
Code of Criminal Procedure, 1882, a High Court has power to consider the ^^Jjol,'011-"
propriety of an order which purports to be passed under section 476 of the
Code. Where a defendant in a suit in the Court of a Munsif applied to the
District Judge for sanction under section 195 of the Code to prosecute a wit
ness who had given evidence 'in the Munsif's Court in support of a deed,
produced as evidence before that Court, which had been found by the Munsif
to be forgery, anl the District Judge refused the application, but, purporting
to act under section 476 of the Code, himself ordered the prosecution of such
witness. Held, that the Judge's order was made without jurisdiction, the offence
in respect of which the prosecution was directed having been neither com
mitted before him nor brought to his notice in the course of a judicial pro
ceeding. In re Sfathura Das, I. L. R., 16 All., 80 (1893).
False informa- Where as the result of a police investigation it appears that a complaint
M?mt-to» mac,e l° police of the commission of an offence punishable under the
complaint to the Penal Code is false, it is not necessary that the complainant should be given
police. any further opportunity of establishing the truth of his allegations before
his prosecution under section 182 of the Penal Code is ordered. Queen-
Empress v. liaghu Tiwari, W.N., N.-W. P., 1893, 111.
PrelimiDary^cn- Where a Deputy Commissioner issued a sanction to prosecute the accused
lo prosecute, upon an express application made on behalf of a certain power against whom
a charge of torture had been made, and which is found, for reasons stated in
. his judgment, to be false, held, taking the order to have been one made
under section 195 of the Code of Criminal Procedure, 1882, that it was a pro
per sanction, inasmuch as it was given to a contemplated prosecution by a
definite person. Semble,—on the supposition that the order was one under
section 476 of the Code, that it was not necessary for the validity of an order
under that section that there should be any evidence on the record contra
dicting the care which was thought to be false or that there should be a
preliminary inquiry. Although it may sometimes well lie that a preliminary
inquiry ought to beheld, the adoption of a rigid rule to that effect is neither
rendered imperative by the law, nor is it desirable. Baperum Surma v.
Gouri Nath Dittt, I. L. B., 20 Cal., 474 (1892).
Sanction for The High Court has jurisdiction to interpose in the case of an order made
iTSrt\o"i_of b>' u Court "n(ler 8ectio" 476 of 1,10 Co,,e °f Criminal Procedure, 1882, and
High Court to has also the power to determine whether the discretion given by that section
gnash orders has or has not been properlv exercised. Chaudhari Mahomed Izharul Jluq
.imler section y T/lg Queen-Empress, I. L. R., 20 Cal., 349 (1892).
Case settled It 's competent for a Civil Court before which a case may have been
without evi- settled without any evidence being gone into, and which has grounds for
tionC*to "give" supposing the offence of the nature referred to in section 195 of the Code of
sanction—En- Criminal Procedure, 1882, has been committed before it during the pendency
prior to grant"'' °^ 8Ucn ca8e' t0 ma^c 11 preliminary enquiry, and thus satisfy itself whether a
ing sanction. prima facie ease has been made out for granting sanction, and if so satisfied,
to grant sanction for the prosecution of the person alleged to have committed
such offence. A sanction granted after such preliminary enquiry and based
thereon is not illegal. Shashi Kumar Dei/ of Paikpamh v. Shashi Kumar Dei/
of Khilparah, I. L. R., 19 Cal., 345 (1892).
Forged docu- Certain documents having been put into Court in a suit pending before
incuts filed in a District Munsif, but not given in evidence, the District Mimsif made an or-
("ourt—Prose- dgr for the prosecution of the parties who so put them in, on the ground that
ivy Court. ' ,lic documents were forgeries. Held, (1) (hat the High Court had power to re
vise the proceedings of the District Munsif ; (2) that the District Munsif was
not competent to go beyond the record ; (3) that the order was wrong and
should be set aside. Abdul Kha-larv. Meera Snheb, I. L. R., 15 Mad., 224
(1892).
False evidence A Sessions Judge who has directed the trial of a person for the offence
—Jurisdiction— of giving false evidence committed in the course of a judicial proceeding of
Sessions Judge. ft crjmma] nature before him cannot try the case himself. Queen-Empress
v. Malhdum, I. L R., 14 All., 354 (1892). .
Sanction for A{ R ,na(1c charge against .1/ A' and others of a violent assault upon him
false charge of and others. The charge was investigated by a Magistrate and M K was dis-
offenceand giv- c|larged. The Magistrate and Sessions Judge refused sanction under section
"UI,eev," 195 of the Code of Criminal Procedure, 1882, to .1/ K to filo a complaint
against .V R under section 211, Penal Code, field, under the particular cir
cumstances, that this was a fit case in which sanction should be given.
Muhammad Khan v. Muhammad Bamsan, Punj. Rec. 1892, 25.
Where under section 195 of the Code of Criminal Procedure, 1882, sane- Fresh wnction.
tion to prosecute has heen granted, and no action having been taken in such
sanction, the order has lapsed, a Court should not, except on good cause shown,
grant a fresh sanction in respect of the same matter. Baldeo Singh v. Pra-
mdi, W. N., N.-W. P., 1892, 245.
A Registrar, acting under Registration Act, 1877, sections 72-75, is a J^f*^'
Court for the purposes of the Code of Cirminal Procedure. 1882, section 195. fg;7- Sanction'
AUhayya v. Gangayya, I. L. R., 15 Mad., 138 (1891).
The word "Court," used in section 195 of the Code of Criminal Procedure, " ^"''l'™?01*
1882, without the previous sanction of which, offences therein referred to, raiment pro-
committed before it. cannot be taken cognizance of, has a wider meaning than reedinirs—
the words " Court of Justice " as defined in section 20 of the Penal Code. It Te,,,n"
includes a tribunal empowered to deal with a particular matter and authorised
to receive evidence bearing in that matter, in order to enable it to arrive at a
determination. A Collector, acting in appraisement proceedings under sections
Ii9 and 70 of the Bengal Tenancy Act, is a Court within the meaning of the
term as there used. Where therefore, in certain appraisement proceedings,
some rent receipts, which were alleged to be forgeries, were filed by tenants
before the Collector, and proceedings were subsequently taken against them be
fore the Joint Magistrate, charging them with offences under sections 465 and
471 of the Penal Code,—Held, that the Joint-Magistrate could not take cog
nizance of the offences charged without the previous sanction of the Collector
having been granted. Rughoubans Sahoy v. Kokil Singh, I. L. I!., 17 Cal., 872
(1890).
When subordinate Courts grant sanction to prosecute under section 195 of Notice to aecus-
the Code of Criminal Procedure, 1882, it is incumbent on them so to frame a^ûiS''6 °'
the proceedings before them as to enable the High Court to satisfy itself power by the
from the record whether the application for sanction has been properly grant- "igb Court,
ed or not. A Magistrate, in disposing of 'i charge of theft, delivered the
following judgment:—"The charge of theft of doors and windows is not
proved at all against the accused. They are acquitted." There was no fur
ther record of the proceedings. Immediately on the judgment being deliver
ed, the pleader appearing for the accused applied for sanction to prosecute the
complainant under sections 182 and 211 of the Penal Code The Magistrate
refused to hear the application then, 011 the ground that it was not the proper
lime fixed by him to hear applications. The attorney for the complainant,
who had expressed his willingness to have the application heard and disposed
of there and then, intimated that he was prepared to show cause why sanction
should not be granted, and asked that notice of any future application might
be given to the complainant. The accused renewed the application the
following day without notice to and in the absence of the complainant or his
attorney, and the Magistrate granted the sanction asked for. On an applica
tion to the High Court to revoke the sanction : Held, that the Magistrate did
not exercise a proper discretion under the circumstances in neglecting to give
the complainant notice of the application, and an opportunity of being heard.
Held, further, that the mere fact of the charge laid by the complainant not
having been proved, was not in itself sufficient ground for granting sanction
to prosecute him under sections 182 and 211 of the Penal Code, and as, be
yond the judgment of the Magistrate, there was nothing on the record to
show that there were sufficient grounds for granting the sanction, it should be
revoked. Kedar Nath Das v. Afoheth Chander Chucherbulty, I. L. P.., 16 Cal.,
661 (1889).
The High Court has no power on appeal to set aside a complaint duly Complaint by «
made bv a subordinate Court under section 476 of the Code of Criminal f^rt
Procedure, 1882. Qitftn-Empre** v. XaraHa, I. L. It., 13 Mad.. 144 (1889).
17
Sanction by Certain persons charged with offences falling under section 82 of the
Lwifî'eVion- Reg'81™*'"11 Act, 1877, and also with forgery of a document presented to, and
registered by, a Sub-Registrar : the Sub-ltegistrar having granted sanction to
prosecute the persons concerned without holding any enquiry, the Sessions
Judge referred the case to the High Court under section 215 of the Code of
Criminal Procedure, 1882, in order that the commitment might be quashed
on the ground that there was no legal sanction. Held, that no sanction was
necessary as to the charge of forgery, and that the provisions of section 195
were not applicable. Queen-Empress v. Vythilinga, I. L. R., 11 Mad., 500
(1888). See also Queen- Empress v. Sobhanadri, I. L R., 12 Mad., 201 (1889).
Jurisdiction of The High Court is competent in the exercise of its rcvisional powers to
reruionto interfere with an order of a subordinte Court, whether made under section
quash orders 195 or under section 476, Code of Criminal Procedure, 1882, directing the
476derAct0,xnof I>rosec"t'°n of any person for offences referred to in those sections. The
1888. High Court, under section 439, has the powers conferred on a Court of Appeal
by section 423 to alter or reverse any such order. Before a Court is justified
in making an order under section 47(5 directing the prosecution of any person,
it ought to have before it direct evidence fixing the offence upon the person
whom it is sought to charge, either in the course of the preliminary enquiry
referred to in that section, or in the earlier proceedings out of which the
enquiry arises. It is not sufficient that the evidence in the earlier case may
induce some sort of suspicion that the person had been guilty of an offieoce ;
but there must be distinct evidence of the commission of an offence by the
person who is be prosecuted. When a Subordinate Magistrate, after trying a
case, sent the record to the District Magistrate with a suggestion that certain
persons ought to be prosecuted under section 211 of the Penal Code, the High
Court held that this did not constitute a sanction to prosecute. In re Khepti
Nath Sikdar v. Qrish Chunder Mukerji, I. L. R., 16Cal., 730 (1889).
Power of Ses- The fact that a Magistrate is not subordinate to the Court of Session in
sions Judne to the sense of section 195 of the Code of Criminal Procedure, 1882, does not
revise order
District of
Ma«is- affoct . the rpower of the Sessions, Judge
.o under
, section 435 to revise anyj finding
_b
trata refusing or order recorded by a Court interior to him, such as an order of the District
sanction. Magistrate refusing to grant sanction for the prosecution of certain persons.
InreNujib Khan,\V. N., N.-W. P., 188'*, 100.
noiMnpse w?th A Civil Court granted sanction under section 195 of the Code of Cri-
th« death of minal Procedure, 1882, to the defendant in a suit to prosecute certain wit-
irantee. nesses for perjury. The defendant died without having preferred a complaint.
His brother, therefore, preferred a complaint, and the Magistrate dismissed
it under section 253 of the Code of Criminal Procedure, on the ground that
the sanction died with the defendant. The Sessions Judge held that the
sanction was alive, and directed the District Magistrate to make further en
quiry- under section 437. Held, that the Sessions Judge was right. In re
Thathayya, I. L. R., 12 Mad., 47 (1888).
Court's power to The granting of a sanction to a private person under clause (<•) of section
proceed under 195 of the Code of Criminal Procedure, 1882, does not debar a Civil Court from
mncHon*78K?vonr proceeding under section 478 ; nor can the dismissal by a Magistrate of a
to private per- complaint made by a private person be held to be a oar, till set aside, to a
■on- proceeding under that section. Queen- Empress v. Shankar, I. L R., 13
Bom., 384 (1888).
?weenttMnc-b0* Section 195 of the Code of Criminal Procedure, 1882, distinguishes between
tion granted to the sanction granted by a Court to a prosecution by a private individual and
a private person a complaint made by the Court itself A superior Court to which such Court
by(aCourtP'8''lt Is subordinate may revoke the sanction granted in the former case to the
private prosecution, but it has no power in the latter case to set aside a
complaint duly made by a subordinate Court. Queen- Empress v. ltuchappa ;
Queen-Empress v. Jrappa, I. L. R., 13 Bom., 109 (1888).
S. I95. 1 Proceedings in Prosecutions. 259
A suit for arrears of rent under section 93, clause (a), Act XII of 1881, ^^\^^.
was heard by a Tehsildar having the powers of and acting as an Assistant j„K taisoovidcncc
Collector. Application was made to him for an order sanctioning the pro- in »
secution of a witness for having given fulse evidence in the course of the trial igg\ by anAsait-
of the suit. The Tehsildar referred the matter to the Magistrate of the dis- taut Collector of
trict, who was the Collector, and that officer made an order sanctioning the pro- ^g^îon'01""
secution. From this order the witness applied to the Court of the District Judge granted by
to revoke the sanction. That Court being of opinion that the Court of the Voll<St°t:^n of
Collector was not subordinate to it in the matter within the meaning of section sesJiouB Judge,
195 of the Co le of Criminal Procedure, 1882, declined to interfere. The witness
then applie 1 to the Commissioner of the Division ; and that officer holding
that he had no jurisdiction in the matter, also declined to interfere. On appli
cation by the witness to the High Court for revision of the order of the Court
of the District Judge : Held, that the Court of a Collector when granting sanc
tion for prosecution under section 195 of the Code of Criminal Procedure, 1882,
in respect of false evidence given in the course of the trial of a rent case from
the final decision in which there was no appeal to the Court of the Judge of the
District, was still to be deemed subordinate to it, within the meaning of that
section, and the Court of the District Judge may be taken to be the Court to
which appeals from the decision of the Collector ordinarily lie. Hari Prasad v.
Debi Dial, I. L. B., 1') All., 582 (1888).
Rules of limitation are foreign to the administration of criminal justice, ^JJtion'to pru-
and it isonly by express statutory provisions that any rule of limitation could be ncute Limit-
made applicable to criminal cases. Art. 178, schedule ii, Limitation Act, must ation.
be construed with reference to the wording of the other articles, and can relate
only to applications ejusiem generis. A suit was instituted for possession of
certain land on which stood a factory. In proof of the claim the plaintiffs
tiled in Court a sarkha'. or lease, which was pronounced by the Munsif to be
a forgery. Plaintiffs appealed to the High Court, where, on the 24th June,
1886, the Munsifs decree was affirmed. Defendants then applied to the Mun
sif for sanction to prosecute the plaintiffs for the offence of using a forged
document knowing the same to be forged. Munsif refused the sanction the
prosecution prayed for ; but on application to the Sessions Judge such sanction
was granted. On application to revive the Sessions Judge's order granting
sanction, it was contended that, after the lapse of nearly three years, sanc
tion to prosecute should not have been granted. Held, that there is no fixed
period of limitation for making applications for sanction under section 195 of
the Criminal Procedure Code, 1882. Queen-Empress v. Ajwlhia Singh, I. L. It.,
10 All., 350 (1888).
A person having laid an information before the police, the police reported Corninanceofan
the case as false ; the informant then appeared before a Magistrate, asking "^".ip""; *"'?e-
that his case might be investigated and his witnesses summoned. This appli- port-Prosecu-
cation was refused, and the Magistrate after perusing the police report passed tion for J»Jj"
an order directing him to be prosecuted under section 211 of the Penal Co le. fiJjêiiqiiirS'nn
Held, that the application to the Magistrate was " a complaint " within the into truth of ori-
meaning of section 191 of the Criminal Procedure Code, 1882, into which the gin»l complaint
Magistrate was bound to have euquired. A Magistrate may take cognizance
under sections 291 and 292 of the Code of an offence brought to his notice by
a police report which affords ground for a suspicion that an offence has been
committed ; but, as a matter of sound judicial discretion, a Magistrate shoul 1
not so proceed and direct that the person suspected be tried until some person
aggrieved has complained, or until he has before him a police report on the
subject based on an investigation directed to the offence to bo tried, and in
cases of alleged false charges, until it is clear that the original charge has been
either hoard and dismissed or abandoned. And before the order to prosecute
for the false charge is made the person who made the original charge should
be offered an opportunity of supporting it or abandoning it. Queen-Empress v.
Shan Lall, I. L. K., 14 Cal., (F. B.) 707 (1887).
Sanction of Be- A Sub-Registrar acting under section 41 of the Registration Act, 1877, is
gistrar-Court. a '•(jour(," within the meaning of section 195 of the Code of Criminal Pro
cedure, 1882. In re Yen Katuchala Pillai, I. L. If., 10 Mad., 154 (1887).
ficr Queen-Empress v. Subba, I. L. R., 11 Mad., 3. A Sub- Registrar acting
under section 34, Registration Act, 1877, is not a "Court."
Sub-Registrar- A Sub-Registrar under the Registration Act. 1877. is not a Judge, and there-
Forgery -Judi- fore not a " Court *' within the meaning of section 195 of the Code of Criminal
Administrative" Procedure, 188*2. His sanction is, therefore, not necessary for a prosecution
enquiry. for forgery in respect of a forged document presented for registration in his
oilice. The word "forgery"' is used in a general term in section 463 of the
Penal Code : and that section is referred to in a comprehensive sense in section
l'J.ôf the Code of Criminal Procedure, 1882, so as to embrace all species of
forgery, and thus includes acase falling under .section 467 of the Penal Code.
The definition of "Court" given in Evidence Act, 1872, is framed only for the
purposes of the Act itself, and should not be extended beyond its legitimate
scope. Distinction between a judicial and an administrative enquiry pointed
out. Queen-Empress v.Julja, I. L. R., 12 Bom., 36 (1887).
What is a In matters relating to the grant of sanction to prosecute under section
Courts-Sam!- 1£'5' Co<ic of Cl in)inal Procedure, 1882, a Court is regarded as " subordinate "
tiou to prose- to anothor Court where the latter is the Court to which an appeal from the
cute refused by funner ordinarily lies, and an application for such sanction must be made to
j\icbri °iu "suit such superior Court even in those particular cases in which an appeal lies to
over its. 6,000— some other Court, e.g., to the High Court. A decree-holder applied to the lirst-
Distr'ictt'coiirt c'llss Subordinate Judge for sanction to prosecute his judgment-debtor, under
to grant sane- sections 20(3 and 424 of the Penal Code, for fraudulent concealment of certain
tionin cases to moveable property, worth about lis. 10,000 awarded by the decree. This
he's'0 'to "ifigii application was rejected by the Subordinate Judge. The District Judge
Court from declined to interfere, on the ground that the decree being appealable to the
Jud££lin"t<i High. Court, the High Court alone could deal with the application under
section 195. Held, that though the decree in the present instance was apjieal-
able to the High Corut, still as appeals from the Court of the first-class Sub
ordinate Judge ordinarily lay to the District Court, the former was subordi
nate to the latter Court, within the meaning of section 195. In re Anant
Ramchawlra Lotlikar, I. L. R., 13 Bom., 438 (1887).
False informa- ^n information was given to a police-officer, in the course of which two
tion to a publio persons were named in whose houses stolen property belonging to a certain
of^Sanct?™1*6 111 ;''v'''ua' would be discovered : on complaint the information was found to
prosecute—S e - De false, and the accused was convicted and punished for two offences under
parate conric- section 182 as affecting two different persons. Held, that although the
stotemen? i"f°rmat;ou related to two different persons, the accused could be charged
gnlity of. ' with having made only one false statement, and punished for one offence
under section 182. Section 195 of the Code of Criminal Procedure, 1882,
clearly shows that a complaint directly made by a public servant mentioned
therein is quite as sufficient as has sanction, l'oonit Singh v. Madho Bhat,
I. L. R., 13 Cal, 270 (1886).
Notice to A conviction for preferring a false complaint is not illegal only by reason
accused. 0f ^jie progecution having been sanctioned without notice previously given to
the accused. Sanctioning a prosecution for an offence is a judicial act, and
the party to whose prejudice it is done must be previously heard, and a judg
ment formed upon legal evidence. In cases in which the Magistrate
dismisses the original complaint upon a report from the police, there is no
legal evidence before him on which to form his judgment. In cases, how
ever, in which the Magistrate examines the complainant and hears the
evidence and acquits or discharges the accused, and then, without notice to the
complainant, sanctions his prosecution for preferring a false charge, sanction
cannot be said to be improperly given. Queen-Empress v. Shfil- licari, I. L.
R., 10 Mad., 232 (1886).
A prosecution under section 182 of the Penal Corlo may bo instituted hy Prosecution un-
a private person, provided that he first obtains the sanction of the public pj'j"^" 182,
officer to whom the false information was given, or of his superior officer.
When a specific false charge is made, the proper section for proceedings to be
adopted is under section 211 of the Penal Code. Queen-Empress v. Jugal
Kishore, I. L. R., 8 All., 382 (1886).
On the 2nd August, 1884, a Munsif, who was of opinion that in the course " Sanction—"
of a suit which had been tried before him, certain persons had committed " Complaint. "
offences under sections 193, 463 and 471 of the Penal Code, and that the pro
secution of these persons was desirable, made an order which he described as
passed under section ti43 of the Civil Procedure Code, and in which he direct
ed that the accused should be sent to the Magistrate, and that the Magistrate
should enquire into the matter. In May, 1885, upon an application by one of the
accused to the District Court to " revoke the sanction for prosecution granted
by the Munsif, " it was contended that the " sanction " had expired on the 2nd
February, 1885, and had ceased to have offect. Held by the Full Bench, that
the Munsif's order, whether it was or was not a sanction, was a sufficient
'•complaint" within the meaning of section 195 of the Code of Criminal
Procedure, 1882, and that the limitation period prescribed by the section was
not applicable to the case. Per Fkthkram, C. J., and STRAIGHT, J.—That
considering that section 043 of the Civil Procedure Code was closely similar
to section 470 of the Criminal Procedure Code, the Munsif's order might be
taken as having been passed under the latter section. Also per PeTHERAM,
C.J-, ami Stbajoht, J.—The words in section 195 of the Criminal Procedure
Code, ''except with the previous sanction or on the complaint of the public
servant concerned," must be read in connection with section 476, which was
enacted with the object of avoiding the inconvenience which might be caused
if a Munsif, or a Subordinate Judge, or a Judge were obliged to appear before
a Magistrate and make a complaint on oath, like an ordinary complainant,
in order to lay the foundation for a prosecution. The language of section 476
indicates that where a Court is acting under section 195, a complaint in the
strict sense of the Code is not required, and that the procedure therein laid
down constitutes the " complaint" mentioned in section 195. Ishri Persad
v. Sham Lai, I. L. R., 7 All., 871 (1885).
No notice is necessary to the person against whom it is intended to pro- Notice to
eeed, before the Court, before which the alleged offence has been committed, accused,
can, under section 195 of the Code of Criminal Procedure, 1882, sanction a
complaint being made to a Magistrate regarding one of the offences specified
in that section. In re Krishnanund Das v. Hari liera, I. L, II., 12 Cel..
(F. B.) 58 (1885).
Sanction was granted to prosecute a defendant for forgery and perjury Fresh sanction
alleged to have been committed by him in a civil suit which was decided J™nted more
against him on the 22nd August, 1882. The defendant then preferred an liter "expiry of
appeal which was dismissed on the 9th August, 1883. The plaintiff comment-- prior sanction
ed criminal proeee lings against the defendant under the sanction, on the SKs'uchlresh
23rd July, 1884, but such proceedings having been commenced more than six sanction should
months after the dute of the sanction, the charge was dismissed. The plain- not sranted.
tiff then, on the 20th August, 1884, applied for a fresh sanction w hich was
granted on the 13th April, 1885. Held, that assuming that the Munsif who
granted the fresh sanction Lad power to do so, as to which the Court express
ed no opinion, such fresh sanction should not have been granted unless
some explanation was given for the omission to commence proceedings
within six months, and as no such explanation was given, or any special
grounds shown why a fresh sanction should not be given, the Munsif did not
exercise a sound discretion in granting such fresh sanction, and consequently
his order was set aside. Jomleo Siii'jli v. Hariltar Pershad Singh, I. L. It.,
11 CaL, 577 (1885).
Evidence of ac- In cases not of the kind contemplated in section 337, Code of Criminal
pardoned*11"* Procedure, 1882, it is not competent to a Magistrate holding a preliminary en
quiry to tender a pardon to the accused, or to examine him as a witness.
Statements made by the accused in the course of such examination are irrele
vant ; and if subsequently retracted, they cannot be used against him, or sub
ject him to a prosecution for giving false evidence, under section 193 of the
Penal Code. When a pardon is legally tendered to the accused under section
337 of the Code, and the accused makes a statement on oath which he retracts
in a subsequent judicial proceeding, a proper sanction is necessary for a pro
secution for giving false evidence on each branch of the alternative charges.
Queen-Empress v. Dalit Jira, I. L. K., 10 Bom., 190 (1885).
Registration It is not necessary that sanction should be given before instituting a
charge under section 82 of the Registration Act. Gopi Nath v. Kuldip Singh,
I. L. R., 11 All., 566 (1885).
Sanction to pro- A Subdivisional Magistrate, after perusing the calendar of a case tried by
jury^rontalby a Magistrate subordinate to him, sent for the record and passed an order un-
MiiKistrate on der section 195 of the Code of Criminal Procedure, sanctioning the proseeu-
revuring calen- tion of a witness in the case for perjury : Held that the order was illegal. The
aar" Queen-Empress v. Kuppu, I. L. B., 7 Mad., 500 (1884).
District Judge- A District Court has jurisdiction under section 195 of the Code of Crimi-
Powerof.to renal Procedure to revoke or grant a sanction granted or refused by a Subordi-
SubUhitte nate Judge's Court. Venkata v. Muttusami, I. L. If., 7 Mad., 314 (1884).
Judge.
Court to satisfy Before granting a sanction to prosecute under section 195 of the Code of
itself. Criminal Procedure, a Court is bound to satisfy itself that an offence has been
committed, but it is not bound to hold any enquiry as to all the persons who
may be implicated in such offence. In re Gov/ndan Nayar, I. L. R., 7 Mad.,
224 (1883).
missed—PreU* ^ Magistrate of the first-class, after considering the result of an investi-
minary enquiry gation by a police-officer under section 202 of the Code of Criminal Procedure,
into the truth dismissed a complaint as false, and passed an order sanctioning the prosecu-
o( complaint. tjon 0£ tue C01I)plainunt for an offence punishable under section 211 of the
Penal Code, and directed a third-class Magistrate to hold a preliminary en
quiry, the offence being cognizable by the Court of Session only. Held, that
as there was no application before the first-class Magistrate for sanction to
prosecute, the order must be taken to be a complaint by the Magistrate, and,
therefore, under section 476 of the Code of Criminal Procedure, the third-class
Magistrate had no jurisdiction to hold an enquiry. Held, also, that the first-
class Magistrate ought to have held a preliminary enquiry under section 476,
in order that the complainant might have an opportunity of showing the truth
or bona fides of the complaint. The Queen v. Gendava Chandrammu, I. L R.,
7 Mad., 189 (1883).
PremninaryV* ^ prosecution of a charge under section 211 of the Penal Code should not
quiry. '! be granted under section 195 of the Code of Criminal Procedure, 1882, as a
matter of course, but only when the complainant can satisfy the Court that the
interests of justice require a prosecution, and there is a strong prima facie
case against the accused. Held, therefore, where S, who had been tried before
the Court of Session for an offence and acquitted, applied to the Court, in res
pect of the criminal proceedings which had been instituted against him. for
sanction to prosecute G for abetment of an offence under section 211 of the
Penal Code, and the Sessions Judge granted the sanction, and there was no
thing on the record of the criminal case or of the Judge's proceedings to
show on what grounds G was accused of abetting a false charge, or on what
grounds the Judge gave the sanction, that before the Judge gave the sanction,
he should have satisfied himself, by examination of S or other enquiry, whether
S had sufficient grounds for accusing G, and whether there were good priind
facie grounds for suspecting G of abetting a false charge, and permitting a
prosecution. In re Gauri Sahai, I. L. B., 6 All., 114 (1883).
A sanction to prosecution for giving false evidence, granted under section False evidence-
195 of the Code of Criminal Procedure, 1882, should specify the place where, ûr9 of 8ano'
and the time when, the alleged false evidence was given, and in substance
the assignments of perjury, as also the sections of the Penal Code under which
proceedings are authorised. In re liar Dial v. Durga Prasad, I. L. B., 6 All.,
105 (1883).
In a suit on a bond, instituted in the Court of a Munsif, the question whe- Nature of »ano>
thor the defendant had executed the bond or not was referred to arbitration, a™^—PiSimi-
The arbitrators decided that the defendant had not executed the bond, and that nary enquiry,
it was a forgery. The Munsif dismissed the suit in accordance with the
award. The defendant then applied to the Munsif for sanction to prosecute
the plaintiff without specifying in his application the offences in respect of
which he desired to prosecute. The Munsif granted sanction, merely observ
ing that there were sufficient grounds for sanctioning the prosecution, with
out giving any reasons or specifying the offence or offences in respect of which
sanction was granted. Field, that the terms in which the Munsif had given
his sanction to a prosecution were not sufficiently explicit, and that he should
have mentioned the section or sections of the Penal Code under which he
authorised criminal proceedings to be taken, as also in a general way the off ence
or offences to be charged, the date of commission, and the place where com
mitted. Further, that as the Munsif himself had not determined the question
of forgery in the suit he should have made some enquiry to satisfy himself
that there were materials to justify a prosecution, lit re Parsotam Lai V.
Bijai, I. L. B., 6 AIL, 101 (1883).
The Court of an Assistant Collector is not subordinate to that of the Ma- Nature of Banc-
gistrate of the district, within the meaning of section 195 of the Criminal tion—Preliroi-
Procedure Code, 1882. Sanction to a prosecution granted under section 195 Tne«alC"ommit-
should specify the Court or other place in which, and the occasion on which, merit—Want of
the offence was committed, and such sanction should not be granted without evilience-
a preliminary enquiry, where such enquiry is " necessary," within the meaning
of section 476 of the Code. Where sanction to the prosecution of a person
for the offence of using certain evidence known to be false was granted by a
Court to which the Court in which such evidence was used was not subordi
nate, and such sanction did not specify the place in which, and the occasion
on which, such offence was committed, and the Court granting the sanction did
not make any preliminary enquiry, although such an enquiry was " necessary."
in the sense of section 476 of the Code, held, that the indispensable prelimi
nary conditions of section 125 of the Code being wanting to the prosecution,
the committing Magistrate was incompetent to entertain the case, and the
commitment was illegal and should he quashed. Held, also, that the fact that
there was not any evidence to connect such person was the use of such false
evidence, was a defect in law sufficient to justify the quashing of the commit
ment. Empress v. Narotam Das, I. L. R., 6 All., 98 (1883).
It is competent for a Court which has granted sanction to a prosecution Expiration of li-
under section 195 of the Code of Criminal Procedure, 1882, to give a fresh nutation—Freih
sanction, if the one previously granted has expired by efflux of time. The 1 '
limitation of six mouths mentioned in section 195 means that a Magistrate
shall not take cognizance of a ease under a sanction which is more than six
months old, and that the whole prosecution must be completed within that
period. Held, therefore, where sanction to a prosecution had been granted
under section 195, and the prosecution had been instituted, and the Magistrate,
in consequence of the evidence of the complainant not being procurable, bad

ordered " the rase to be shelved for the present," and the complainant, after
the six months mentioned in section 195 had expired, applied to the Magis
trate to re-open the proceedings, that it was competent for the Magistrate, hav
ing once taken cognizance of the case, and is still remaining on his file
undetermined, to take it up again at any moment, and proceed with the prose
cution without fresh sanction. In re Gulab Singh v. Debt Prasad, I. L. R..
6 All., 45 (1883).
Pals* charge. J complained to the police that she had been raped by R. The police hav
ing reported the charge to be false, criminal proceedings were instituted
against her under section 182 of the Penal Code. In the meantime J made
a complaint in Court, again charging R with rape. This complaint was not
disposed of, but the proceedings against her under section 182 of the Penal
Code were continued, and she was eventually convicted under that section.
Held, setting aside the conviction and directing that J's complaint should be
disposed of, that such complaint should have been disposed of before proceed
ings were taken against her under section 182. Empress v. Jumii, I, L. R.,
5 All., 387 (1883).
Sanction forniv- A second-class Magistrate of a Taluk, not being the official superior of a
in*: false infor- police station-house officer within the meaning of section 467 of the Code of
motion to police- ,N •
officer, jiven by criminal• 1 nrroceaure,
» m-r-» cannotA smction a 0prosecution under
1872, j section 182
, ~~
second-olass of the Penal Code for giving false-information to the station-house officer. The
&uX!"™?id. Q"een v- Vel<'!/"^m P'lld, I L- t> Mad., 140 (1882).
Jurisdiction to On an application for sanction to prosecute under section 408 of the Co le
G'roundsfor"1- of Criminal ProceJure, 1872, it is not competent to the Court to go behind the
unction must record in determining whether or not sanction should be granted when the
appear from the reoord itself dis loses no foundation for the charges. SangHi Vira Pandia
record. Chinnatambiar v. 'Die Queen, I. L. It., 0 Ma i., 29 (1882).
Prosecution— A made a report at a police-station accusing R of a certain offence. The
Bejection^with P°''oe 'ulvmf? reported to the Magistrate having jurisdiction in the matter that
reference "o their opinion the offence was not established, the Magistrate ordered the
ponce-report. case to be " shelved." A then preferred a complaint to the Magistrate again
accusing R of the offence. The Magistrate rejecte I the complaint with re
ference to the police-report. Subsequently R, with the sanction of the police
authorities, instituted criminal proceedings against A, under section 182 of the
Penal Code, in respect of the report which he had made at the police-station,
and A was convicted under that section. Held, that before proceeding against
K, the Magistrate should have fully investigated and sifted his complaint for
himself, and should not have abrogated the functions imposed on him by law,
because the police had reported against the entertainment of the case. Held,
also, that K's conviction under section 182 of the Penal Cade was illegal as
the Magistrate had no power to entertain a complaint under that section at the
instance of R, the application of section 182 and the institution of prosecu
tions under it being limited to the public servant against whom the offence
has been committed or to his official superior, as mentioned in section 404 of
the Code of Criminal Procedure, 1872, and it not being intended that those
provisions should be enforced at the instance of private persons. Moreover,
if K's complaint was false, his offence was against R, and not against the
public servant to whom the complaint was made, and fell within section 211
of the Penal Code. Ordered that the complaint made by A should be investi
gated. Empress 0/ India v. Radha kishan, I. L. It., 5 All., 36 (1882).
Sanction to On an application to a Munsif for sanction to prosecute, the following
prosecute. order was made upon the petition :—" If the petitioner thinks there is sufficient
evidence against A, I have no objection to give such sanction." Held, that
the order was net a sufficient sanction to support a prosecution. In re Jadu
nath Ha*ra v. Annoda Prasad Sircar, 11 Cal. L. B., 53 (1882).
S. 195.] Proceedings in Prosecutions, 265
A Magistrate should not direct a prosecutor to be put upon his trial " Sanction to
under section 211 of the Penal Code without first giving him an opportunity fjjJJ0^^"
of obtaining a judicial enquiry into the charge originally preferred by him.
The sanction to prosecute, contemplated in section 4U8 of the Code of Crimi
nal Procedure, 1872, is not a direction to prosecute, hut is a permission grant
ed to a private person to exercise his own unfettered discretion as to whether
he will take proceedings or not. la re Hiridhari Mondul v. Uehit Jha, I. L.
K., 8 Cal., 435 (1881).
Where a charge had been preferred against a person and the Magistrate Dismissal of
before whom it was beard, after bearing the statement of the complainant but j>°l"J^*„|1j0'n'
not those of bis witnesses, dismissed the complaint, and subsequently on under section
the application of the person charged, granted him leave under section 170 2'1 of Penal
" to prosecute the complainant for bringing a false charge. Held, that the e-
proceedings were not irregular, and that the Magistrate was justified in acting
as he bad done. Held, also, that there is a distinction in the proceedings to be
adopted when a sanction is given under section 470 and the institution by the
Court of its own motion of proceedings under section 471. In re Gyan
Chunder Roy v. Tralab Clntnder Das, I. L. B., 7 CaL, 208 (1881).
Upon a trial for bringing a false charge with intent to injure, it appeared o'D™rtlcHl"t?eof
that the original complaint was lodged in the Court of the Extra Assistant substantiating
Commissioner, and a local enquiry by a competent police-officer was directed, chaw.
The officer reported that the charge was false, and recommended that the
prisoner should be prosecuted. The Extra Assistant Commissioner ordered
the papers to be sent to the Deputy Commissioner, who ordered the prosecu
tion, and the prisoner was convicted field, that the conviction was bad.
The Extra Assistant Commissioner should, on receipt of the report of the
police, have communicated its contents to the prisoner and afforded her an
opportunity of substantiating her complaint, and should then have decided the
case. The Empress v. Grith Chunder Nundi, I. L I! , 7 Cal., 87 (1881).
A sanction for the prosecution for making false charge under section Sanction to pro-
211 of the Penal Code without hearing all tin; witnesses whom the person secute for niak-
accused of making the false charge wishes to produce is illegal. The High >"* fa"* charge.
Court has power to quash an illegal commitment at any stage of the case.
The Empress v. Shiho Behara, I. L. ft., 6 Cal., 584 (1881).
A commitment for trial under the provisions of section 211 of the Penal Charge made on
Code for knowingly instituting a false charge with intent to injure the per- J^STca"^"^™
sons accused is not illegal merely because the complaint which the accused false—Charge of
made has not been judicially enquired into, but is based on the report of the §en'",f 'aIse ovi"
police that the case was a false one. The Emprexs v. Sulik Roy, I. L. 0
Cal., 582 (1881).
The sanction required by section 469 of the Code of Criminal Procedure, Prosecution
1872, as a condition precedent to the prosecution of a party to a civil suit for witnesses in
forgery of a document given in evidence iu such suit is unnecessary in the foêry8Uof do-
case of persons not parties to. but witnesses in, the suit wdio are charged with cumentlu suit—
the forgery of the document jointly with a party to the suit. Eadara Virana Sanction un-
v. The Queen, I. L. 1!., 3 Mad., 400 (1881). necessary.
Where a Magistrate dismisses a complaint as a false one under section 147 False charge,
of the Code of Criminal Procedure, 1872, and decides to proceed against the
complainant under section 471 for making a false charge, he is not bound
before so proceeding to give the complainant an opportunity of substantiating
the truth of the complaint, by being allowed to produce evidence before him.
Empress of India v. Bhauxini Prasad, I. L. 1!., 4 All., 182 (1881).
266 Proceedings in Prosecutions, [Chap. XV.
Civil Court- Where a civil Court directs an enquiry to bo made by the Magistrate of
Order by, under the district under section 471 of the Criminal Procedure Code, 1872, in
•action -471 of (he respect to the evidence given by the witnesses in a case before it, the High
Criminal Proce
dure Code- Court cannot as a civil Court on appeal interfere. Ambicu Suiuluri Chow-
Appeal—Proce dhrain v. Ajitulla Mondul, 8 Cal. L. !{., 148 (1881).
dure.
Opportunity to Before a person can be put upon his trial for making a false charge under
accused to section 211 of the Penal Code, he must be allowed an opportunity of proving the
prove tlio truth truth of the complaint made by him; and such an opportunity.should be afford-
of charge.
ed to him, if he desires to take advantage of it, not before the police, but be
fore the Magistrate. Magistrates should clearly understand that whilst the
police perform their proper duty in collecting evidence, it is the function of the
Magistrate alone to decide upon the sufficiency or credibility of such evidence
when collected. The Government v. Karimdad, I. L. R., 0 Cal., 496 (1880).
Juriadioton to The Courts that have jurisdiction to grant sanction to proceedings under
a:ive sanction— section 408 of the Code of Criminal Procedure, 1872, are the Courts before which
w^thoutêv? ''le onCence was alleged to have been committed, and the Courts to which such
deuce. Court is subordinate. Per Garth, C. J.— Where a case is settled without
evidence being gone into the Court in which the suit was brought, even if it
have power to sanction criminal proceeding against any of the parties to such
suit under section 408 of the Code, is guilty of great impropriety and indiscre
tion in so doing. Inasmuch as it can have had no opportunity of judging of the
bona fries of the claim or defence. Semble.—A petition presented under Regula
tion XVII of 1800 not requiring verification, cannot, from the fact of its being
verified unnecessarily, be made the subject of a prosecution for giving false
evidence. Jut/gat Chunder Mozunulur v. Kasi Chunder Mozumdar, I. L. R., 6
Cal., 440 (1880).
Institution of If in the course of a proceeding, either civil or criminal, a Judge or Magis-
crmmml pro- trate find clear grounil for believing that either the parties to the proceedings
n'pp™f m"civ!l or their witnesses have committed perjury or any other offence against public
Couri. justice, he is justified in directing criminal proceedings against such person
under section 471 of the Criminal Procedure Code, 1872, without any further en
quiry than that which he has already held in his own Court. As a matter of
discretion and propriety, it is right for a Court, before committing a person on
a charge of perjury upon his own uncontradicted statement to await the hear
ing of the appeal where an appeal is pending in the case in which he is
charged with such perjury. In re Mutty Lull Ghose, I. L. R., 0 Cal., 308 (1880).
Sanction— The Mamlatdar's Court, constituted by Bombay Act III of 1876, is a
Mntnlatdnr's civil Court within the meaning of section 408 of the Code of Criminal Proce
Court. dure, 1872; therefore a complaint of an offence, mentioned in that section,
when such offence is committed before or against the Mamlatdar's Court,
shall not be entertained in the criminial Courts, except with the sanction of
the Mamlatdar's Court, or of the High Court to which it is subordinate.
In re Satanta, I. L. R., 5 Bom., 137 (1880).
False charge- B charged certain persons before a police-officer with theft. Such charge
Contempt -
Prosecution. who directed by
was brought the police to the notice of the Magistrate having jurisdiction,
the police to investigate into the truth of such charge. Having
ascertained that such charge was false, such Magistrate took proceedings
against Bon a charge of making a false charge of an offence—an offence pun
ishable under section 211 of the Penal Code, and convicted him of that offence.
Held, that as such false charge was not preferred by H before such Magistrate,
the offeiue of making it was not a contempt of such Magistrate's authority,
and the provisions of sections 408 and 473 of the Code of Criminal Procedure,
1872, were inapplicable, andsuch Magistrate was not precluded from trying B
himself, nor was his sanction or that of some superior Court necessary for B's
trial by another officer. Empress of lndiu v. Baldeo, I.L.R., 3 All., 322 (1880).
S. I95-] Proceedings in Prosecutions. 267
Where a person has instituted a charge found to bo fasle by the police, a False chara-e-
Magistrate, except under exceptional circumstances, is not justified merely on Summary pro-
a perusal of a police report which has found the charge made to be false, in wpoVt!
prosecuting the person by whom such charge was preferred, summarily under
section 182 of (he Penal Code, but should proceed under section 211. When
a charge is pronounced false by the police, no proceedings should be taken by
a Magistrate, guo motu, until a reasonable interval has shown that the com
plainant accepts the result of the investigation. In re llusskk Lai Mullick; 7
Cal., L. R., 382 (1880).
There is nothing in section 211 of the Penal Code which limits the penal- Charge laid be-
ty imposed to cases in which attempts have been made to substantiate false pouorom-
charges in a Court of Justice. A false charge made before the police is there
fore punishable under this section. Athraf Alt v. The Empress, I. L. 11,5
Cal., 281 (1879).
An oftence under section 211 of the Penal Code includes an offence under Preliminary en-
section 182 ; it is therefore open to a Magistrate to proceed under either sec- Quiry.
tion, although, in cases of more serious nature, it may be that the proper course
is to proceed under section 211. Bholcterum v.IIeera Kolita, I. L. R.. 5 Cal.,
184 (1879).
A Deputy Magistrate has no power to question an order made by his su- Power of Depu-
perior, sanctioning a prosecution under sections 182 and 211 of the Penal quesUo'ii'saiic-0
Code. Whether such sanction has been rightly or wrongly given, is a ques- Sou.
tion for the accused to raise before a competent Court, lite Empress v. had
Ally, I. L. R., 4 Cal., 8G9 (187'J).
A charge of burglary and theft having been preferred against two per- Dismissal of
sons, the Magistrate before whom the charge was laid, after comparing the pe- Sift'o'/'com-
tition of complaint with the papers submitted to him by the police, who had plainant to be
made an enquiry and reported the charge to be false, directed, without having examined,
taken the examination of the complainant, that the case should be strucK out,
and that proceedings should be instituted against the complainant under section
182 of the Penal Code. Proceedings were accordingly taken, and the com
plainant was ultimately tricd.'and found guilty of an offence under section 211.
Held, on appeal, that the proceedings had been irregular and snould be quash
ed ; that the Magistrate should be directed to re-open the enquiry into the
charge of burglary and theft, first-examining the complainant ; and that, if after
such examination he should be of opinion that the charge was false, the ap
pellant might be proceeded against under section 211 of the Penal Code.
In re Biyogi Bhagttt, 4 Cal. L. 1!., 134 (187H).
Where sanction has been given under section 4G8 of the Code of Crimi- J?*^ °i ,Di*'
nal Procedure, 1872, by a Deputy Magistrate to a person to prosecute another to proceed ™ 6
for bringing a false charge, and such sanction is not proceeded under, it is where prosecu-
open to the District Magistrate to take up the case under section 142 without avaii'ed himself
complaint. The Empress v. Nepcha,\. L. R., 4 Cal., 712 (1878). of the sanction.
A petition was presented to the Joint Magistrate charging the police with False charno-
having made a false report of an investigation which they had been directed ûiuhy11"'
to make at the instance of the petitioner. The Joint Magistrate, after reading
the police report, rejected the petition, and directed the petitioner to be
prosecuted under section 211 of the Penal Code fur having made a false
charge : Held, that-tho Joint Magistrate should not have made the order
without first instituting an euquiry into the truth of the complaint, such as
is required by section 471 of the Code of Criminal Procedure, 1872. In re
Choolhaie Telee, 2 Cal. L. R., 315 (1878).
llelulivu posi For the purposes of suction 408 of the Code of Criminal Procedure, 1872,
tions of a Ma a Magistrate of the first-class is subordinate to the Magistrate of the district;
gistrate of the a sanction given by the latter to prosecute a person for intentionally giving
11 ret-el;iss, the
Magistrato of false evidence before the former is, therefore, legal and sufficient, notwithstand
the district, and ing the refusal by the former to give such sanction himself. Semble, that the
the Court of Sessions Court has no power to give such sanction. Imperatrix v. Padrna-
Session.
nabhPai, I. L. R., 2 Horn., 384 (1877).
False clinnre. To constitute the offence of making a false charge under section 211 of the
Penal Code, it is enough that the false charge is made, though no prosecution
is instituted thereon. Empress of India v. Abttl Hasan, 1. L. It., 1 All., 497
(1877).
Order sending; Although section 10 of Act XXIII of 1861 gives Civil Courts power
case to Magis similar to those conferred on'.Civil ami Criminal Courts alike by section 471 of
trate forenquir- the Criminal Procedure Code, 1872, the whole law as to the procedure in cases
ing Into offences
of giving false within those sections is now embodied in section 471 of the Code. In a suit
evidence —Pre brought to recover possession of certain property, the Judge decided one of
liminary enqui
ry—Vagueness the issues raised in the plaintiff's favor, but on the important issue as to whe
•if charge. ther the plaintiff ever had possession, he found for the defendant The plain
tiff was not examined, but on theissue as to possession he called two witnesses.
The Judge disbelieved their statements, and considering that the plaintiff had
failed to prove his case he gave judgment for the defendant, without requiring
him to give evidence on that issue. In the concluding paragraph of his judg
ment, the Judge directe 1 the depositions of the two witnesses above referred
to, together with the English memoranda of their evidence, to be sent to the
Magistrate with a view to his enquiring whether or not they had voluntarily
given false evidence in a judicial proeee ling ; an 1 he further directed the Ma
gistrate to enquire whether or not the plaintiff had abutted the offence of giving
false evidence on the ground that as the witnesses were the plaintiff's servants,
he must personally have influenced them, and also to enquire whether the plaint
which the plaintiff had attested contained averments which he knew to lie
false. On a motion to quash this order, held, that under section 471 of the
Code, the Judge has no power to send a case to a Magistrate except when,
after having made such preliminary enquiry as may be necessary, he is of
opinion that there is sufficient ground (<. e., ground of a nature higher than
mere surmise or suspicion) for judicial enquiry into the matter of a specific
charge, and that the Judge is bound to indicate the particular statements or
averments in respect of which he considers that there is ground for a charge
into which the Magistrate ought to enquire, and that the order was bad, because
the Judge had made no preliminary enquiry, and because it was too vague and
general in its character. The Queen v. Baijoo Lai, I. L. It.. 1 Cal., 450
(187G).
Prosecution for The sanction of a Court to a prosecution for a false charge is necessary
raise charge. when the offence has been committed before such Court, and not otherwise ;
and a judicial finding of the falsehood of a charge is not indispensable to such
a prosecution. Ram Runjun Bhanduri v. Madhub Ghotse, 25 W. R., 33
(1876).
Prosecution- Held, that the sanction referred to in sections 408 and 409 of the Code of
Sanction—iU- Criminal Procedure, 1872, when given by any of the Courts empowered under
risiictiou. the Act, cannot be disturbed by a superior Court. Per Turner, Officiating
C. J., and Pearson and Oldfield, JJ.— When sanction is refused by one of
the Courts the refusal does not deprive the other Courts of the discretion
given to them. Per Spankie, J.— When sanction is refused by one of the
Courts, the refusal does not deprive the superior Courts of the discretion
given to them, liarkat-id-lah Khan v. lieunie. I. L. R., 1 All., 17 (1875).
The words " appellate judgment (if acquittal " in the Code of Criminal False complaint
Procedure, 18 < 2, section 272, were meant to include all judgments of an _jSrosectjo,,,
Appellate Court by which a conviction is set aside. A complaint made at a
police-station is not made before any civil or criminal Court, and, if it proves
false, prosecution for it does not require the sanction of any Court under sec
tion 468 of the Code. The Government of Bengal v. Gokool Chunder Chow-
dhry, 24 W. R., 41 (1875).
Under section 471, Criminal Procedure Code, 1872, the Court must first J$j.nmmry en'
make a preliminary enquiry to satisfy itself that a specific charge coming
under the section mentioned in it ought to be preferred against the accused ;
and. after being so satisfied, it must either commit the case or send the case
to the Magistrate for enquiry, whether a committal should be made or not.
In re Kali Prommio Bagchee, 23 W. R., 39 (1875).
When it is intended to charge a person with having made a false state- eh^-Rc.
mcnt in the Court of a Magistrate or (alternatively) a false statement in the quiaiteol a
Court of a Subordinate Judge, there must be a proper sanction for a prosecu- proper sanction,
tion on each branch of the alternative. A sanction for a prosecution under
section 470 of the Criminal Procedure Code, 1872, must designate to the
Court where the false statement was alleged to have been made and the
occasion on which it was committed It is desirable, if not necessary, that
in the sanction for prosecution the description of the offence intended to be
prosecuted should be stated in general terms, although details may be omitted.
In re Balaji Sita Ham, 11 Bom. H. C, 34 (1874).
The power of a Magistrate to delegate the receiving of complaints under p^^'^'Jôf
section 66B, Code of Criminal Proce lure, is not equivalent to the power of jurisdiction,
the Local Government to invest with local jurisdiction under section 23D :
and no Magistrate can act under Chapter XX who has not been legally invest
ed with local jurisdiction. No order of the Local Government under the
latter section can legally have retrospective effect. A plea of want of jurisdic
tion may be taken in the High Court, though not taken below. Messrx.
Macdonald and Macrae v. Mr. Riddell, 16 W. R., 69 (1871).
Under section 249, Act VIII of 1889, which extends the provisions of Procedure-
section 180 to trials of offences under Chapter XIV, a Deputy Magistrate *w"
may dismiss a complaint under that chapter without calling evidence, if in
his judgment there is no sufficient ground for proceeding under it. Under
the circumstances of this case, however, the High Court considered that the
Deputy Magistrate should have made enquiries before charging the complain
ant with making a false charge under section 2!1, Penal Code. The Queen
v. Gour Mohan Singh, 16 \V. R., 44 (1871).
The words of section 191 of the Penal Code are very general, and do False evidence—
not contain any limitation that the false statement made shall have any bear- ^'J,0,''0" ,0 1,ro*
ing upon the matter in issue. It is sufficient to bring a case within that 8ec" ,0"'
section if the false evidence is intentionally given, that is to say, if the per
son making the statement makes it advisedly, knowing it to be false, and
with the intention of deceiving the Court, and of leading it to be supposed
that that which he states is true. The object of the sanction required by-
section 169, Code of Criminal Procedure, 1861, is to ensure that the prose
cution should lie instituted after due consideration on the part of the Court
before whom the false evidence was given, or on the part of a Court to which
such Court is subordinate. Where a Magistrate perused the papers of a case
which had been forwarded to him by a Subordinate Magistrate for considera
tion, and then sent on the papers to the District Superintendent of Police with
an opinion adverse to the prisoner, and the District Superintendent of Police
requested the Magistrate to issue a warrant against the prisoner charging
him with giving false evidence, it was held that the issue of the warrant
was a sufficient sanction under section 109 on the par! of the Magistrate. The
Queen v. Mahomed Hoetain, 16 W. 1!., 37 (1*71).
270 Proceedings in Prosecutions [Chap. XV.
Procedure— In a case in which a false charge was brought, a Magistrate gave the
Permission to accused (-4) permission under section 1(59, Code of Criminal Procedure, 1801,
prosecu e. ^ prosecute the complainant (fl) of an offence under section 211, Penal Code.
The Magistrate tried the complaint of A as a complaint under section 211,
but he subsequently framed a chargs against B under section 182, Penal
Code, and punished him under that section. Held, with reference to section
168 of the Code that the offences under sections 182 and 211, Penal Code,
being offences under Chapter XIV of the Code, the Magistrate was wrong in
framing the charge under section 182 without obtaining the previous sanction
of the criminal Court which heard the previous complaint of B. Raj Coomar
v. Kirthu Ojha, 13 W. K., 67 (1870).
Procedure— A Magistrate, to whom the case of a person charged with giving false
FaTse^vUIence. evidence in a judicial proceeding is transferred for investigation, cannot
commit to the Sessions, without himself recording evidence and examining
the complainant and his witnesses in the presence of the accused. The Qieen
v. Ramdhun Singh, 11 W. K., 22 (1869).
Civil Court— The civil Court, in giving permission to prosecute under sections 169
prosec'itte- ° and 170, Code of Criminal Procedure, 1861, should, in a case of forgery,
Forgery—Per- 8tate distinctly what the document is for which a prosecution is to be enter-
*ury' tained. The particular act or acts of forgery, and, in a case of perjury, the
particular words which constitute the perjury, should be specified. Reference
by the Additional Sessions Juige of the 2\-Pergunnuh» in re Gobind Chunder
Ghose, 10 W. R., 41 (1868).
Defamation— A person against whom information has been falsely given with a view
PublfomPscrvarit to his injury has a right to bring a civil action for damages with or without
—Permission to the consent of the public servant against whom the offence was committed, but
institute a jie cannot bring a criminal charge under section 189 or any other section of
u ' Chapter X of the Penal Code, without the permission of such public servant,
the law looking upon the conduct of the person wdio gives the false informa
tion as an offence, not against the individual charged, but against the public
servant to whom the false information was given. To constitute an offence
under section 182, Penal Code, the information given must be information
which the informer knew or believed to bo false, and it must be proved that
he gave it with such knowledge, hi re Moidvy Abdool Laleef, 9 W U., 31
(1868).
Offence of pro- To constitute the offence of preferring a false charge, under section 211
charge. " Ials0 of the Penal "Code, the charge need not be made before a Magistrate. _ Nor
need the charge have been fully heard and dismissed ; it is enough if it is not
pending at the time of trial. The Queen v. Subbanna Gaundan, 1 Mad
H. C., 30 (1862).
offeuês'iînst No Coort shall take cognizance of any offence pun-
the state. ishable under Clnpter VI *of the Indim Penal Code (except sec
tion 127), or punish ible under section 108 A, or section 153A, or
section 29 1 A. or section 505 of the same Code, unless up >n com
plaint made by order of, or under authority from, the Governor-
General in Council, the Loc tl Government, or some officer em
powered by the Govern >r-Geuenl in Council in this behalf.
• Chapter VI of the Penal Code relates to—Offences against the State.
8. 127.— Receiving property taken by war or depredation mentioned in sections 125 and
8. 108/4 —Abetment in British India of ofTcnces outside it.
8. 1 534 .—Promoting enmity between classes.
S. mA.- Keeping lottery office.
8 . 505.—False statement, rumour, etc., circulated with intent to oause mutiny or offence
against the public peace.
S. 196.] Proceedings in Prosecutions. 2^1
[ 29 (Act XI of 1878—The Arms Act). Where an offence pun-[9ancUon re-

ishable under section 19, clause (/') * has been committed within three fata proeeedu"
months from the date on which this Act comes into force in any pro- !'nder 8ec"
. -o-ii a r a v \- r • Hon IP, cunia
vince, district, or place to which section 32, clause 2, of Act XaaI on/).]
18C0 applies at such date, or where such an offence has been committed
in any part of British India not being such a district, province, or place,
no proceedings shall be instituted against any person in respect of such
offence without the previous sanction of the District Magistrate, or, in
a Presidency-town, of the Commissioner of Police. ]
[ 69 (Act No. I of 1879— General Stamp Act). No prosecution [institution
in respect of any offence punishable under this Act, or the General prosmuion']0'
Stamp Act, 1809, or any Act thereby repealed, shall be instituted with
out the sanction of the Collector or such other officer as the Local
Government generally, or the Collector specially, authorises in that be
half.
The Chief Controlling Revenue Authority, or any officer authorised

by it in this behalf, may stay any snch prosecution, or compound any
such offence. ]
[5 (Act No. I of 1889—Metal Tokens Act). (1) The offence of ISSSST^
making in contravention of section 3, t any such piece as is mentioned "le last. forego-
in that section shall be a cognizable offence. "* sectlon- J
(2) Notwithstanding anything in the Code of Criminal Pro

cedure, 1882, no other offence punishable under section 4 I shall be a
cognizable offence, or beyond the limits of a presidency-town be taken
cognizance of by any Magistrate, except a District Magistrate or Sub-
divisional Magistrate, without the previous sanction of the District
Magistrate or Subdivisional Magistrate.]
Accused was convicted by the Court of Sessions under section 121, Pe- ^Jj^'J,* t"Jr
nal Code, of the offence of waging war against the Queen. The proceedings Queen—Coin-
before the Magistrate commenced upon a police report, and not upon a complaint by Go-
plaint. Held, that the Magistrate and the Sessions Court had both exceeded ^"n"5"'-
their jurisdiction in taking cognizance of the offence without a complaint
authorised in the manner prescribed by section 19(3, Criminal Procedure Code.
After commitment but before trial, the Local Government by letter accorded
sanction for the prosecution. Held, that this letter was not a complaint, and
that the absence of a complaint was a fatal defect not cured by section 537,
Criminal Procedure Code, 1882. Held, further, that section 532 of the Code
was not applicable to a commitment by a Magistrate duly empowered to
commit. It applies only to cases where the Magistrate or other authority who
has assumed to commit has not been duly invested with the powers under
which he assumes to makn the commitment, that is, when the defect is one
personal to the committing officer and not a defect in his proceedings. Sha-
mal Khan v. The Empress, Punj. Rec., 1890, 33.
* S. 10, clause (/).—has in his possession or under his control any arms, anmunltion or
military stores in contravention of the provisions of section 14 or section 15.
8. 14. - Unlicensed possession of Hre-Rnns, Ac
8. 16.—Possession of arms of any description without license prohibited in certain places,
t 8. S. - Prohibition of makinit by private porsons of pieces of metal to be used as money.
t S. 4.—Penalty for unlawful making, issue or possession of such pieces.
272 Proceedings in Prosecutions. [Chap. XV
J Ud?" »° a nd ^97. (1) When any Judge, or any public servant not re
public tervants moveable from his office without the sanction (if the Government
of India or the Locil Government, is accused as such Judge or
public servant of any offence, no Court shall take oognizanoo of
such offence, except with the previous sanction of the Government
having power to order his removal, or of some officer empowered
in this behalf by such Government, or of some Court or other
authority lo which such Judg>* or public servant is subordinate,
and whose power to give such sanction has not been limited by
such Government.
Power of Go- (~) Such Government may determine the person by whom,
veniment >• to the manner in which, the off'euce or offences for which, the pro-
prosecu ion. secutj011 0f nich Judge or public servant is to be conducted, and
may specify the Court before which the trial is to be held.
["Judee."] [19 (P. C). The word "Judge" denotes not only every person who
is officially designated as a Judge, but also every person who is empowered
by law to give, in any legal proceeding, civil or criminal, a definitive
judgment, or a judgment which, if not appealed against, would be
definitive, or a judgment which, if confirmed by some other authority,
would be definitive, or who is one of a body of persons, which body of
persons is empowered by law to give such a judgment.
Illustration:
(a) A Collector exercising jurisdiction in a suit under Act X of
1859 is a Judge.
(A) A Magistrate exercising jurisdiction in respect of a charge on
which he has power to sentence to fine or imprisonment, with or without
appeal, is a Judge.
(c) A member of a panchayat which lias power, under Regulation
VII of 181(5, of the Madias Code, to try and determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on
which he has power only to commit for trial to another Court, is not a
J udge.]
["Public «er- (P. C ). The words "public servant " denote a person falling
vmt.'M under any of the descriptions hereinafter following, itamely : —
First.—Every covenanted servant of the Queen ;
Second.—Every commissoned officer in the military or navel forces
of the Queen while serving under the Governmsnt of India or any Govern
ment ;
Third.—Every Judge ;
Fourth.—Every officer of a Court of Justice whose duty it is, as such
officer, to investigate or report on any matter of law or fact, or to make,
authenticate, or keep any documents, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath,

or to interpret, or to preserve order in the Court, and every person spe
cially authorised by a Court of Justice to perform any such duties ;
Fifth.—Every juryman, assesssor, or member of a panchayat assisting

a Court of Justice or public servant ;
Sixth.—Every arbitrator or other person to whom any cause or

matter has been referred for decision or report by any Court of Justice
or by any other competent public authority ;
Seventh.—Every person who holds any office by virtue of which he

is empowered to place or keep any person in confinement ;
Eighth.— Every officer of Government whose duty it is, as such

officer, to prevent offences, to give information of offences, to bring
offenders to justice, or to protect the public health, safety, or conveni
ence ;
Ninth.—Every officer whose duty it is, as such officer, to take,
receive, keep, or expend any property on behalf of Government, or to
make any survey, assessment, or contract on behalf of Government, or
to execute any revenue-process, or to investigate or to report on any
matter affecting the pecuniary interests of Government, or to make,
authenticate, or keep any document relating to the pecuniary interests
of Government, or prevent the infraction of any law for the protection
of the pecuniary interests of Government, and every officer in the service
or pay of Government, or remunerated by fees or commission for the per
formance of any public duty ;
Tenth.—Every officer whose duty it is, as such Vofficer, to take,

receive, keep, or expend any property, to make any survey or assessment,
or to levy any rate or tax for any secular common purpose of any village,
town, or district, or to make, authenticate, or keep any document for
the ascertaining of any rights of the people of any village, town, or
district.
Illuttration.
A Municipal Commissioner is a public servant.

Explanation I.—Persons falling under any of the above description
are public servants whether appointed by the Government or not.
Explanation II.—Wherever the words " public servant " occur, they
shall be understood of every person who is in actual possession of the
situation of a public servant, whatever legal defect there may be in his
right to hold that situation.]
[A coroner is a public servant. Act IV of 1871, section 5.]

18
274 Proceedings in Prosecutions. [Chap. XV,
*ro9#cution—'°r ê Mlln'c'Pa' Committee, of which the accused was a member, passed

Public servant a resolution to which the accused was a party and which the complainant
not removealile considered defamatory, lie accordingly preferred a complaint charging the
without °flthe accused with defamation, which was rejected by the Magistrate for want of
sanction ol Go- the sanction prescribed by section 197, Criminal Procedure Code, 1882.
Mun'icnwfcom- ê'('> 011 revision by the Chief Court, (1) that the accused, as a member of the
roUdomr. Municipal Committee, was a public servant not rouiovcable from his office
without the sanction of the Government, section 8, Act XIII of 1884, and
(2) that the Act complained of was imputed to the accused as an act com
mitted by him in the character of a meml>er of the committee, and that he
was therefore a public servant accused, as such public servant, of the offence
of defamation, within the meaning of section 1!>7 of the Code, and not liable
to be prosecuted without the previous sanction of Government. Hakhah!
Ram Lahbai/a v. Diwan Gaupal Rai, Punj Rec, 1890, 2'!.
Sanction to Where a Judge was charged with using defamatory language to a wit-
?o™wonU utter" "e8H 'baring the trial of a suit : Held, that under section 197 of the Code of
ed on the Criminal Procedure, 1882, the complaint could not be entertained by a Ma-
foench. gistrate without sanction. fnreGulam Muhammad Sharifuddaulah,l L. R.,
9 Bom., 439 (1886).
Jurisdiction— The provisions of the Code of Criminal Procedure, 1882, apply to the
TcSure-Pro? Court of the Judicial Superintendent of Railways in H. H. the Nizam's De-
ceoilinffs in the minions held at Socunderabad. Where, after a Magisterial enquiry, a European
lUciai °Su'le rill ^'"i^8'1 subject, being a public servant within the meaning of section 197 of
temlent 0/jtaii- the Criminal Procedure Code, was committed for trial to the High Court of
ways in H. 11. Bombay by the Judicial Superintendent of Railways in H. H. the Nizam's
JJoiuiiuona—S Dominions, without any previous sauction having been obtained as required
Sanction of pro- by that section : Held, that the proceedings were irregular and without juris-
soMient8-aa'' c''ct'oni ant* tmit 11 miction subsequently obtained was of no effect ; but
Jronof no effect also, that the provisions of section 532 of the Criminal Procedure Code
—Irregular com- applied, and that the Judge presiding at the Criminal Sessions of the High
nmmont accej)- rj0„rt power, iii his discretion, to accept the commitment, and to proceed
Court—Power with the trial of the prisoner. Per Sargent, C. J.—The Court of the Judicial
01'a? Su' °rinteti Superintendent oi Railways in His Highness the Nizam's Dominions is subor-
dentof {tuVlwaya dinate to the High Court of Bombay in all criminal matters relating to
to commit to European British subjects. Per Baylky, J.—The Court of the Judicial Super-
Charges prefer- inteudent of Railways in H. H. the Nizam's Dominions is not subject to the
redbyAdvoc- superintendence of the High Court of Bombay within the meaning of clause
LeTt^rs"* a"t' nt ^ °^ t'ie betters Pênt, 1865; and a prisoner committed by the former Court
lSissfcTause"?*' f°r 'r'a' '° tne High Court cannot be tried on charges preferred by the Advo-
—European cate-General under that clause. Queen-Empress v. A. Morton and Moorteza All,
fuh&u. I. L.R, 9 Bom, 288 (1884).
Sunction to pro- The prosecution of a police-patel, for an offence committed by him in his
patel—^rnifn omo'a' capacity as such, needs no previous sanction. The provisions of the
Village Police Bombay Village Police Act (VIII of 1867), section 9, as amended by the Bom-
Act, bay Police Amendment Act (I of 1876), rentier a police-patel removeable
from his office without the previous sanction of Government, and, therefore,
section 466 of the Criminal Procedure Code, 1872, does not apply. Imperatrir
v. Bhagu-an Devrqj, I. L. R., 4 Bom., 357 (1879).
Reference— A Municipal Corporation is not a public servant within the meaning of

Municipal section 39 of Act IV of 1877, and may, therefore, be prosecuted under the Pe-
PubncscrvajitT uu' Code, without the preliminary sanction of the Government required by that
section. The Empress v. The Municipal Corporation of the Town of Cal
cutta, I. L. B., 3 Cal., 758 (1878).
Section 466 of the Code of Criminal Procedure, 1872, extends to all acts Sanction of pro-
ostensibly done by u public servant, »'. to acts whicli would have no special le™''"" bjrOor-
siguineation except as acts done by a public servant; therefore a mahalkan l^puty-Mahal-
charged with lubricating the proceedings of a case decided l>efore himself, kari- Court of
could not be tried on that charge except with the sanction specified in that sec- jud^-Coin-t of
tiop. Paragraph 1 of section 466, which mentions a sanction by Government, District Judge,
or its Deputy, is intended to apply, at least, chiefly to the cases of persons spe
cially responsible to Government, such as accountants who have failed in their
duty, and paragraph two, which speaks of sanction by Government alone, to
persons proteasing to exercise certain authority, and with that pretext doing an
act which is impeached by a subject on the groundof its being wholly unwar
ranted or of an excess or impropriety of some kind. A mahalkari falls within
the class of public servants contemplated in paragraph one of section 466 ;
a sanction for his prosecution by the District Magistrate is therefore suffi
cient. For the purpose of sanctioning a criminal prosecution under sec
tion 468 of the (Jode, tin- Court of the Subordinate Judge is subordinate to
that of the District Judge, notwithstanding that the subject-matter of the
litigation in the former Court involves more than Rs. 5,000, and an appeal lies
direct to the High Court from the decision of that Court in that matter. A
prosecution commences when a complaint is made, the reception of the com
plaint being a stage of the judicial proceedings towards conviction. Jmpera-
triz v. La/cehman Hakhram Vaman llari, I. L. R., 2 Bom., 481 (1877).
The Courts of the Head Assistant Magistrate and of the Deputy Magistrate Court of Asais-
have jurisdiction to try a District Munsif on charges of extortion in the course MaKi("ratc«—
of the exercise of his judicial functions. The Sessions Judge is a proper Jurisdiction,
person to sanction the prosecution. By IxsES, J.— The rule (laid down in
section 8, Regulation VI of 1816) requiring the committal of such cases to
the Court of Session, has been impliedly, though not expressly, repealed. C.
Nuraynna Sami Ayyar, 7 Mad. H. C, 182 (1872).
A civil Court has no power to make an order under section 170 of the power to grant
Criminal Procedure Code, 1861, sanctioning a prosecution for an offence sanction to pro-
committed before the Court of the Principal Sadr Amin on the Small Cause *ocute-
Side, that Court not being subordinate to the civil Court. Ex-purte Mahalin-
gaiyan, 6 Mad. H. C, 191 (1871).
Upon the construction of section 167 of the Criminal Procedure Code, 1861 : wgr f ^
Held, that the section by implication vests in the Court or authority to whom inland0 diroct-
the Judge or other public servant not removeable, &c, is subordinate, the in* prosecu-
power of sanctioning or directing such prosecution. It does not say that the tlon"
Government must give the power, but that it shall exist unless limited or
reserved. Every Court or authority, therefore, has it unless there is a limit
ation. It is very desirable that such sanction or direction should be in writ
ing and attached to the record, but it is by no means legally imperative.
Semble the objection (to the want of sanction) should be taken at the trial.
B. Krutm Rau, 7 Mad. H. C, 58 (1871).
The Local Government in sanctioning or directing (under section 167 of 8anchon by ^
the Criminal Procedure Code, 1861), a charge against a public servant of an cal Government
offence as such public servant has power to limit its sanction, by giving direc- -^X™li£rn °*
tions as to the person by whom, and the manner in which, the prosecution is to public servant —
be preferred and conducted ; and a Court has no jurisdiction to entertain a Terms of sane-
charge against such public servant if preferred otherwise than in accordance p{i»nce "with"
with such directions. Semble. —The Local Government has power in the like terms of shiic-
cuse to direct that the accused public servant shall be tried before a specified di°n~n,uri*'
tribunal being one having jurisdiction in that behalf. Therefore, where the
sanction directed that the accused public servant t-hould be prosecuted upon such
charges as Mr. C might be prepared to prefer against him, and there was
nothing on the record to show, nor did it otherwise appear that Mr. C. had
preferred any charge against, or taken any part in the prosecution of, the ac
cused public servant, the High Court quashed the conviction of the accused
as having been without jurisdiction. Reg v. Vinayak Divakar, 8 Bom., H. C,
32 (1871).
Prosecution for 198. No Court shall take cognizance of an off mce falling
Inet, detenu- under Chapter XIX or Chapter XXI of the Indian Penal Code or
aj^^m?™068 under sections 493 to 49b" (both inclusive) of the same Code except
n«8»- upon a complaint made by some person aggrieved by such offence.
Chapter XIX.—Of the criminal breach of contracts of service.

Chapter XXI.—Of defamation.
S. 493.—A man by deceit causing a woman not lawfully married to him
to believe that she is lawfully married to him and to cohabit
with him in that belief.
S. 404.—Marrying again during the lifetime of a husband or wife.
S. 495.— Same offence with concealment of the former marriage from
the person with whom subsequent marriage is contracted.
S. 406.—A person with fraudulent intention going through the ceremony
of being married, knowing that he is not thereby lawfully
married.
police-officer
, 4- A witness cannot be prosecuted for defamation in respect of statements

SSMS^ a madcV; Wm when giving evidence in a Judicial proceedmg. Queen-Erapreu
witness-Privi- y Ba6(^ L L. R., 17 Bom., 127 (1892).
Defamation of When a married woman is defamed by the imputation of unchastity, her
a wife-Corn- husband is a person aggrieved, upon whose complaint the Magistrate may
plaint by bus- jgjjg cognizance of a complaint under Criminal Procedure Code, 1882, section
• 198. Chellam Naidu v. Ramatami, I. L. H., 14 .Mad., 379 (1891).
"Complaint"— ^ charge of defamation not contained in the complaint presented to the
Charge of defa- Magistrate, but added subsequently by the Magistrate upon statements made
madei^com- ^y the complainant in his examination under section 200 of the Criminal
plaint, but ad- Procedure Code, 1882, whether of his own accord or in consequence of sug-
ded in eubse- gestions from the Magistrate, is not a legal "complaint" made by an aggrieved
tion?terttmlntt" person within the meaning of sections 4 (a) and 198, so as to enable the Magis
trate to take cognizance of the offence. Queen-Empreeis v. Veokinantlan,
I. L.B., 10 All., 39 (1887).
Where the wife of a lunatic was prosecuted for bigamy on the complaint
WVaof the hmatic's brother : HeUl, that the ^«J^îDMJ~2
rZorf-.Jrie-tLe lunatiCi wa8 not a "person aggrieved by such offence »ithin the mean
V9d/ inir of section 198 of the Criminal Procedure Code 1882, and that the com
plaint could not be entertained. Q,,een-E,npre*S v. Bm Rukshwn,, I. L. K.,
10 Bom., 340 (1886).
K was accused by D and P, alleged to be D's wife, of raping P, and was Adultery—Eri-
committed for trial charged in the alternative with rape or adultery. The riJJjSL/fot I^S
evidence of niariage between D and P consisted of their statements that they 1872-Proiecu-
were married to each other, and of a statement by K that P was D's wife. 'ion for adul"
K was convicted on the charge of adultery. Held, that such evidence, having y"
regard not only to section 50 of the Evidence Act, 1872, but to the principle
that strict proof should be required in all criminal cases, was not sufficient
to establish the vital incidence to the charge of adultery, namely, the marital
relation of D and P. Also that, as no complaint had ever been actually insti
tuted by D against K for the offence of adultery, as contemplated by section
478 of Criminal Procedure Codo, 1872, (the circumstances of D's appearing
' as a witness for the prosecution for the offence of rape not amounting to the
institution of a complaint within the meaning of that section), K's conviction
for adultery must be quashed. Empress of India v. Kalltt, I, L. R., 5 All.,
233 (1882).
A complaint was made to a Magistrate accusing a certain person of hav- Competency ot
ing taken or kept the wife of the complainant. In the course of the proceed- Magistrate on a
ings it appeared that the wife had committed bigamy (section 494, Indian ^^to 'enquire
Penal Code). The Magistrate without further complaint committed the into that of
woman alone for trial by the Court of Session. Held, that the Magistrate had bigamy,
acted within his jurisdiction, section 142 of the Code of Criminal Procedure,
1872, being designed to prevent a Magistrate from enquiring without com
plaint into a case "connected with marriage ; but when a case is properly
before the Magistrate, he may proceed against any person implicated. In re
Ujjalla Bewa, 1 Cal. L. B., 523 (1878).
Section 466 of the Code of Criminal Procedure, 1872, extends to all acts Sanction of pro-
ostensibly done by a public servant, i.e., to acts which would have no special oSvernmenf or
signification except as acts done by a public servant; therefore a mahalkari its Deputy—*a-
charged with fabricating the proceedings of a case decided before himself, l"llk%riZ^Sxirttn
could not be tried on that charge except with the sanction specified in that JudK^-Courtot
section. Paragraph 1 of section 466, which mentions a sanction by Gov- District Judge,
eminent or its Deputy, is intended to apply, at least, chiefly to the cases of
persons specially responsible to Government, such as accountants who have
failed in their duty, and paragraph 2, which speaks of sanction by Govern
ment alone, to persons professing to exercise certain authority, and with
that pretext doing an act which is impeached by a subject on the ground of its
being wholly unwarranted or of an excess or impropriety of some kind. A
mahalkari falls within the class of public servants contemplated in paragraph
1 of section 466 ; a sanction for his prosecution by the District Magistrate is
therefore sufficient. For the purpose of sanctioning a criminal prosecution
under section 468 of the Code, the Court of the Subordinate Judge is subordi
nate to that of the District Judge, notwithstanding that the subject-matter of
the litigation in the former Court involves more than Re. 5,000, and an
appeal lies direct to the High Court from the decision of that Court in that
matter. A prosecution commences when a complaint is made, the reception of
the complaint being a stage of the judicial proceedings towards conviction.
imperatrix v. Lalcshman, Sakhram, Vaman Hart, I. L. R., 2 Bom., 481
(1877).
199. No Court shall take cognizance of an offence under Prosecution for
section 497 or section 498 of the Indian Penal Code, except upon t&ingVinarried
a complaint made by the husband of the woman, or, in his ab- woman•
sence, by some person who had care of sucli woman ou his behalf
at th9 time when such offence was committed.
S. W.—Adultery.
8. WS.—Enticing or tukiug away or detaining witu a criminal intent a married woman.
Cognizance of The complainant charged the accused with an offence under section 366
?fg"tfci^Court of the Penal Code in respect of his wife. The Deputy Magistrate convicted
away married the accused of an offence under section 498 of the Penal Code, and sentenced
woman-Con- him to one month's rigorous imprisonment. The Sessions Judge being of
not offence ™" opinion that the Deputy Magistrate had no jurisdiction to convict the accused
where evidence under section 498, there being no complaint by the husband under section 199
for" ra?rient of the Criimnal Procedure Code, 1882, and that the offence did not fall under
offence-Appeal- section 238 of the Code, referred the case to the High Court. Held, that
able sentence, such a case is within the intention of section 238. The intention of the law
imposition of. .g to prevent Magistrates enquiring, of their own motion, into cases con
nected with marriage unless the husband or other person authorised moves
them to do so. But when the husband is complainant and brings his complaint
under section 366, a conviction under section 498 may properly be had if the
evidence be such as to justify a conviction for the minor offence, and yet
insufficient for a conviction for the graver one. Jatra Shekh v. Reasat Shekh,
I. L. K., 20 Cal., 483 (1892).
" Complaint—" A charge of defamation not contained in the complaint presented to the
ration not***" Magistrate, but added subsequently by the Magistrate upon statements made
made in coi"- by the complainant in his examination under section 200 of the Criminal Pro-
Pj1"^1' D"t cedure Code, 1882, whether of his own accord or in consequence of sugges-
quent'examinations from the Magistrate, is not a legal " complaint " made by an aggrieved
tion. person within the meaning of sections 4 (a) and 198, so as to enable the
Magistrate to take cognizance of the offence. Queen-Eirtpress v. Deokinan-
dan, I. L. R., 10 All., 39 (1887).
Complaint- The complainant informed the police and gave a petition to the Ma-
pla?n\ng1thatm" gwtrate to the effect that accused had committed a rape upon his wife, and
accused had he prayed that accused might be punished under section 376 of the Penal
'nem''1}" Code. The police after enquiry reported to the Magistrate that the case was
positmiil'efore" one of adultery, not of rape , whereupon the Magistrate directed that the
Magistrate con- accused shouid be challaned. In his deposition before the Magistrate, the
of'ediTltery.^6 complainant stated that he wished to proceed against accused for adultery.
Held, that such statement was not a sufficient compliance with the law which
lays down that a complaint under section 497 of the Penal Code shall not be
instituted except by the husband of the woman. Rahmatulla v The Em
press, Punj Rec, 1883, 12.
Adultery—Bvi- K was accused by D and P, alleged to be D's wife, of raping P, and was
riam£-Act ""of committed for trial charged in the alternative with rape or adultery. The
1874—Proseeu- evidence of marriage between D and P consisted of their statements that they
tion for adul- were married to each other, and of a statement by K that P was D's wife.
ry' K was convicted on the charge of adultery. Held, that such evidence, having
regard not only to section 50 of the Evidence Act, 1872, but to the principle
that strict proof should be required in all criminal cases, was not sufficient to
establish the vital incident to the charge of adultery, namely, the marital re
lation of D and P. Also that as no complaint had ever been actually institu
ted by D against K for the offence of adultery, as contemplated by section
478 of the Criminal Procedure Code, 1872, (the circumstances of D's appearing
as a witness for the prosecution for the offence of rape not amounting to the
institution of a complaint within the meaning of that section), K's conviction
for adultery must be quashed. Empress of India v. Kallu, 5 All., 233 (1882)
Commitment A Magistrate having committed a person for trial by the Court of Session
aduUe^-With- on a charge of adultery, immediately afterwards, on the representation of the
drawal of pro- prosecutor that he wished to withdraw from the prosecution, discharged the
eh^'e"ollitc- BCCUseo^- Held, that the order of discharge was bad, as under sections 196
cused-Einla- and 197, Explanation, Criminal Procedure Code, a commitment once made
nation. can be quashed by the High Court only Empress of India v. Janahir. I. L. R„
4 All., 150 (1881).
A complaint was made to a Magistrate accusing a certain person of hav- Jurisdiction—

ing taken or kept the wife of the complainant In the course of the procee:l- Complaint—
ings it appeared that the wife had committed bigamy (section 494, Indian M°ngistrate'oii°a
Penal Code). The Magistrate without further complaint committed the charge of ndul.
woman alone for trial by the Court of Session. Held, that the Magistrate had {^thato"'"!?
acted within his jurisdiction, section 142 of the Code of Criminal Procedure, amy.
1872, being designed to prevent a Magistrate from enquiring without com
plaint into a case connected with marriage ; but when a case is properly be
fore the Magistrate, he may proceed against any person implicated. In re
Ujjala Bewa. 1 Cal. L. R., 523 (1878).
Where the Sessious Judge did not allow a police inspector to be exa- rtonoTles'tilmin'
mined for the defence, anil the accused was thereby prejudiced, and where —Admissioii'at'a
evidence taken by the Deputy Magistrate was admitted without the prisoner 8e»sions trial of
having an opportunity of examining an admittedly important witness, the by'^MaKistrate
High Court quashed the conviction and ordered a now trial. The fact that a —Trial of adul-
chargo under the Indian Penal Code, section 407, was triable with assessors, '*ry by * ,UTlr'
and not by a jury, would not affect the legality of a conviction of adultery
before a jury. Quatre.—Is the formal assent of a husband to a charge of
adultery, added at the end of his deposition, a proper compliance with the
Code of Criminal Procedure, 1872, section 478 ? The Quern v. Luckhy Hardin
Xagory, 24 W. R., 18 (1875).
CHAPTER XVI.
Ok Complaints to Magistrate.
200. Subject to the provisions of section 476, a Magistrate alamination of

taking cognizance of an offence on complaint shall at once examine comPllun"!"-
the complainant upon oath, and the substance of the examination
shall be reduced to writing and shall be signed by the complainant,
and also by the Magistrate :
(a) when the complaint is made in writing, nothing herein
contained shall bo deemed to require a Magistrate to
examine the complainant before transferring the case
under section 1 92 ;
(A) where the Magistrate is a Presidency Magistrate, such
examination may be on oath or not as the Magistrate
in each case thinks fit, and need n it be re luc3d to
writing ; but the Magistrate may, if he thinks fit, before
the matter of the complaint is brought before him,
require it to be reduced to writing :
(c) when the case has been transferred under section 192
and the Magistrate so transferring it has already exa
mined the complainant, the Magistrate to whom it is
so transferred shall not be bound to re-examine the
complainant.
28o Proceedings in Prosecutions. [Chap. XVI.
Examination of It is not a sufficient compliance with the provisions of section 200 of the
^CoSp&hMnt' Code of Criminal Procedure, 1882, where a complainant, who has presented a
me°rely called written complaint, is merely called upon to attest the complaint on oath, no se-
upon to parate sworn statement of the complainant boing recorded by or under tho
wri«?nK orders of the Magistrate to whom the complaint is presented. Kesri v. Muham
mad Baksh, I. L. R., 18 All., 221 (1896).
ThirJ-class Ma- A revenue officer sent a yadast to a third-class Magistrate, charging a
oagntanoe "S cert"'11 person with having disobeyed a summons issued by the revenue officer.
ca« on receipt of Tho third-class Magistrate thereupon tried and convicted the accused under
revenue 'oBcer 8ection 174 of tlle Penal Code- The District Magistrate referred the case on
and convicting the ground that the conviction was bad under section 530 (k) of the Code of
™m"n^' com- Cr.im.inal Procedure, 1882. Held, that as the yadast amounted"to a complaint
plainant. within the meaning of section (4), although the complainant was not examined
on oath as required by section 200, the conviction was not illegal. Queen-Em
press v. Monu, I. L. R., 11 Mad., 443 (1888).
•' c i t"— ^ cnarSe °^ defamation not contained in the complaint presented to the
Chance of"defa- Magistrate, but added subsequently by the Magistrate upon statements made
mation not made by the complainant in his examination under section 200 of the Criminal Pro-
but Cadded*irin cecûre Code, 1882, whether of his own accord or in consequence of sugges-
•ubaequent oxa- tions from the Magistrate, is not a legal " complaint " made by an aggrieved
mination. person within the meaning of sections 4 (a) and 198, so as to enable the Magis
trate to take cognizance of the offence. Queen-Empress v. Deolcinandan, I. L.
R., 10 Cal., 39 (1887).
Magistrate's po- Section 155 of the Code of Criminal Procedure, 1882, deals only with the
wer to direct a powers of police-officers. It confers no power or authority on Magistrates to
Uo'n 'bVy "t'n*6 direct a ôca' investigation by the police, or call for a police report. It is not
p o 1 ice-C o m- a proper course for a Magistrate, when a complaint is made before him of an
plaint of an offence of which he can take cognizance, to refer the complaint to a police-
blc'by aCSagi™" officer. He is bound to receive the complaint, and after examining the cam-
trate—Exannna- plainant, to proceed according to law. In re Jankidas Guru Sitaram, I.
ptinan^" L. R, 12 Bom, 161 (1887).
Di am i nal of Sections 200 to 203 of the Criminal Procedure Code, 1882, must be read
eompIaint-^Re- together, aud a Magistrate dismissing a complaint under the provisions of
^cor'who'ufan section 203 on any one of the three grounds, viz.—(l). If he, upon the state-
iwcused person - ment of the complainant, reduced to writing under section 200, finds no offence
C\'im Cod 'mm?" has been committed ; (2). If he distrusts the statement made by the complain-
Xotl r»t). seo ant ; and (3). If he distrusts that statement, but his distrust is not sufficiently
tkmiK0-K3, strong to warrant him in acting upon it, except upon a further enquiry as
provided for in section 202, must record his reasons for so doing, for if such
reasons were not recorded it would be impossible for tho High Court, exercis
ing its revisional powers under section 437 of the Code, to consider whether
the discretion of such Magistrate has been properly exercised. It was never
contemplated that a Magistrate should call for a report from an accused per
son under section 202 for the purpose of ascertaining the truth of the com
plaint if such accused happened to be an officer subordinate to the Magistrate.
Where, therefore, a complaint was made against a police-officer, and com
plainant's statement 'was duly recorded, and the Magistrate acting under the
provisions of section 202 called for a report from such police-officer, and acting
upon that report dismissed the complaint under section 203 : Held, that he
had acted illegally, and that his order made under the last named section
should be set aside, and the case proceeded with according to law from the
time at which the complaint was^ made aud the complainant's statement so
recorded. Baidya Nalh Singh v. Muspratt, I. L. R, 14 Cal, 141 (1886).
K was accused by D and P, alleged to be D's wife, of raping P, and Adultery—Act

was committed for trial, charged in the alternative with rape or adultery, (jj^j* c^Je)
The evidence of marriage between D and P consisted of their statements that motion *OT— '
they were married to each other, and of a statement by K that P was D's Evidence of
wife. K was convicted on the charge of adultery. Held, that such evidence, ™Jf "wi'cEvi-
having regard not only to section 50 of the Evidence Act of 1872, but to the dence Act), sec-
principle that strict proof should be required in all criminal cases, was not ''ut"io5n for'sdul-
sufticient to establish the vital incident to the charge of adultery, namely, the tery—Act Xof
marital relation of D and P. Also that, as no complaint had ever been actu- 187* (Criminal
ally instituted by D against A' for the offence of adultery, as contemplated code).- section
by section 478 of the Criminal Procedure Code, 1872, (the circumstance of D's 478.
appearing as a witness for the prosecution for the offence of rape not amount
ing to the institution of a complaint within the meaning of that section),
K'i conviction for adultery must he (mashed. Empress of India v. Kallu,
I. L. K., 5 All., 233 y 1882).
A charge properly laid under the Penal Code should bo investigated, even Criminal charge
if the case be one in which a civil action will lie. Reference by the Sessions -Civil act on.
Judge of West Burdtcan in re Khiral Singh v. Toolshee Chowdhry, 10 W. R.,
40 (1868).
201. (/) If the complaint has been made in writing to a gSûXt
Magistrate wh ) is not competent to take cognizance of the case, competent to
,<=,,, ,, . . f„ ,. °, ,i n i. takeeoirmzuncc
he shall return the complaint lor presentation to the proper Court 0i the case,
with an endorsement to that effect.
(2) If the complaint has not been made in writing, such Ma
gistrate shall direct the complainant to the proper Court.
202. (/) If the Chief Presidency Magistrate, Or any other Postponement
Presidency Magistrate whom the Local Government may from e'^*ue of pr0"
time t j time authorise in this behalf, or any Magistrate of the first
or secjnd class, is not satisfied as to the truth of a complaint of
an offence of which he is authorised to take cognizance, he may.
when the complainant has been examined, record his reasons, and
may then postpone the issue of process for compelling the attend
ance of tlu person complained against, and either inquire into the
case himself or direct a previous local investigation to be made
by any officer subordinate to such Magistrate, or by a police-offi
cer, or by such other person not being a Magistrate or police-offi
cer, as he thinks fit, for the purpose of ascertaining the truth or
falsehood of the complaint
{2) If such investigation is mule by some parson not being
a Magistrate or a pjlice-office1, he shall exercise all the powers
conferred by this Code on an officer in charge of a police-station,
exc±pt that he sh;ill n >t have power to arrest without warrant.
(3) This section applies ulso to the police in the towns of
Where an original complaint is dismissed under section 203 of the Code Dismissal of
of Criminal Procedure, 1882, a fresh complaint on the same facts before the e^R!"!"',- ro.
same Magistrate cannot be entertained, so long as the order of dismissal is ceeTnngs-^F?nal
not set aside by a competent authority. Komul Chandra Pal v. Gour Chand disposal of
Audhikari, I. L. R., 24 Cal, 286 (18*7). STtioa. *
282 Proceedings in Prosecutions. [Chap. XVI.
Reference of A Magistrate can send a case for enquiry by the police under Criminal
ptucVtoV'en- Procedure Code, 1882, section 202, only when tor reasons stated by hirn he
quiry. distrusts the truth of the complaint. In cases where the accused is a member
of the police force, it is generally better that the enquiry should be prosecuted
by a Magistrate. Queen-Empress v. Kanappa Pillai, I. L. R., 20 Mad., 387
(1897).
Magistrate—°' Where a Magistrate before whom a complaint was made held an enquiry
Disqualification under section 202, Act X of 1882, for the purpose of ascertaining the truth or
to try cas™16 falseu0°d of the complaint before issuing process, and, after holding an
enquiry, summoned the accused, examined witnesses on botli sides, and, after
a short adjournment, examined a witness called by himself, and found the
accused guilty under sections 341 of the Penal Code : Held, that there is
nothing in the Criminal Procedure Code which disqualifies a Magistrate who
holds a preliminary enquiry under section 202 from trying the case him
self, and that the provisions of section 555 have no application, inasmuch
as the Magistrate had not initiated or directed the proceedings against the
accused person, nor taken an active part in the arrest or collection of evidence
against such person. Held, also, that the Magistrate was strictly within his
rights under section 540 in receiving fresh evidence after evidence on both
sides had been taken and the case adjourned for judgment, inasmuch as the
case was still a pending case when such evidence was taken. Ananda Chunder
Singh v. Basu ifudh, I. L. B., 24 Cal., 1G7 (1896).
Dismissal of As a general rule any person, having knowledge of the commission of an

withdrawal of offence, may set the law in motion by a complaint, even though he is not
complainant in personally interested or affected by the offence. The exceptions to this rule,
noT,™rroaIS of wluc1' se('tions 195 utl(1 198 of tlie Criminal Procedure Code, 1882, are
for dismissal of examples, are exceptions created by Statute. There is nothing in the Code
(•impUint— showing an intention to confine prosecutions to the persons directly injured,
p 1 a Ui- Com- Where the offence charged is a "warrant" and not a "summons" case, a
plainant not a Magistrate ought to proceed with the enquiry or trial in spite of the with-
nblelor'refusal l'rawal °f l'ie complainant, if he finds the elements of any offence on the
to answer. facts set forth in the complaint. Section 248 of the Co J i applies only to a
"summons" case. Semble. —A complainant is not a witness punishable for
refusal to answer under section 485 of the Code of Criminal Procedure, or
under section 179 of the Penal Code. In re Ganesh Narayan Sathe, I. L. B.,
13 Bom., 600 (1889).
Dismissal of a A Magistrate cannot dismiss a complaint under section 203 of the Code of
MasTstrite'sd'is^ Criminal Procedure, 1882, until he has examined the complainant to see whether
cretion—Nature there is prima facie evidence of a criminal case. In exercising his discretion
such d?s6TIV °' un<êr 8ec't'on 203, the Magistrate ought not to allow himself to be influenced
—" SufflSelir'1 u>' u consideration of the motive by which the complainant may have been
around." mean- actuated in moving in the matter, nor by any other consideration outside the
"plainant's01"" ^llcta w'«ch are adduced by the complainant in support of his complaint,
motive. In re Ganesh Narayan Sathe, I. L. R , 13 Bom., 590 (1889).
Sstrate'takîiK ^ revenue officer sent a yadast to a third-class Magistrate, charging

cogniiance of certain person with having disobeyed a summons issued by the revenue officer,
of r6 arfoiTfrom '^'le ''''""^-class Magistrate thereupon tried and convicted the accused under
a rcveliueofncer section 174 of the Penal Code. The District Magistrate referred the case on
and convicting the ground that the conviction was bad under section 530 (/.•) of the Code of
ou^'eianT^niiig Criminal Procedure, 1882 : Held, that as the yadast amounted to a complaint
complainant, within the meaning of section (4), although the complainant was not exa
mined on oath as required by section 200, the conviction was not illegal.
Queen-Empress v. Monu, I. L.*K., 11 Mad.. 443 (1888).
Section 155 of the Code of Criminal Procedure, 1882, deals only with the Ma*i«trate'» po-
powers of police-officers. It confers no power or authority on Magistrates to vestiia*
direct a local investigation by the police, or call fur a police report. Ft is not tion by the po-
a proper course for a Magistrate, when a complaint is made before him of an [j™ ^01"fl
offence of which he can take cognizance, to refer the complaint to a police- ^nimble hv a
officer. He is bound to receive the complaint, and after examining the com- Mniristratc—Ki-
plainantto proceed according to law. In re Jankhlas Guru Sitaram, I. L. 1!., '!""'!*,'!„"„!''
12 Bom., 161 (1887).
Sections 200 to 203 of the Criminal Procedure Code, 1882, must be read to- DUmiasul of
gether, and a Magistrate dismissing a complaint under the provisions of section coiniilniiit
203 on any one of the three grounds, viz.—(1). If he, upon the statement of onto" who'is aii
the complainant, reduced to writing under section 200, finds no offence has ac-cuwd person,
been committed ; (2). If he distrusts the statement made by the complainant;
and (3). If he distrusts that statement, but his distrust is not sufficiently
strong to warrant him in acting upon it, upon a further enquiry as provided
for in section 202, must record his reasons for so doing, for if such reasons
were not recorded it would be impossible for the High Court, exercising its
revisional powers under section 437 of the Criminal Procedure Code, 1882, to
consider whether the discretion of such Magistrate has been properly exercised.
It was never contemplated that a Magistrate should call for a report from an
accused person under section 202 for the purpose of ascertaining the truth
of the complaint if such accused happened to be an officer subordinate to the
Magistrate. Where, therefore, a complaint was made against a police-officer,
and complainant's statement was duly recorded, and the Magistrate acting
under the provision of section 202 called for a report from such police-officer,
and acting upon that report dismissed the complaint under section 203 : Held,
that ho had rcted illegally, and that his order made under the last named
section should be set aside, and the case proceeded with according to law from
the time at which the complaint was made anil the complainant's statement
so recorded. Baidya Nath Shirjh v. Mutpratt, I. L. 1!., 14 Cal., 141 (1886).
The use of the term " may take cognizance of any offence " in section Complaint -Ma-
191 of the Criminal Procedure Code, 1882, docs not make it optional with a *}~"'tMavp(tnko
Magistrate to hear a complainant, but refers rather to the action of the Magis- comiiiance of."
trate in taking cognizance of an offence in either of the specified courses in n,panin>t of
which the facts constituting the offence may be brought to his notice. He is
bound to examine the complainant, and then can either issue summons to the
accused or order an enquiry under section 202, or dismiss the complaint
under section 203. Unier Alt v. Safer Ali, I. L. B., 13 Cal., 334 (1886).
A Magistrate upon complaint made, having issued process, and examined Reference to
witnesses in support of the complaint, ceased to exercise jurisdiction. His JJjJ'jJf fi""?1^-
successor, on taking up the case, referred the complaint to the police for eoru of the evi-
enquiry and report, and, upon receipt of the report, discharged the ac- "?emc,[ ,'„„"„(
cused : Held, that this procedure was illegal. A reference under section 10 "
202 of the Code of Criminal Procedure, 1882, cannot be made after evi
dence has been taken for the complainant and process issued. Sadago-
pacharyar v. Ragavacharyar, I. L. R., 9 Mad., 282 (1886).
A Magistrate of the tirst-c'ass, after considering the result of an inves- Complaint di»-
tigation by a police-officer under section 202 of the Code of Criminal Proce- "c^pro'seîie
dure, 1882, dismissed a complaint as false and passed an order sanctioning the — Preliminary
prosecution of the complainant for an offence punishable under section 21 1 e»fl"'ry into the
of the Penal Code, and directed a third-class Magistrate to hold a preliminary {Saint. ° C°m"
enquiry, the offence being cognizable by the Court of Sessions only : Held,
that, as there was no application before the first-class Magistrate for sanction
to prosecute, the order must be taken to be a complaint made by the saiil
Magistrate, and therefore, under section 476 of the Code, the third-dan
284 Proceedings in Prosecutions, [Chap. XVI.
Magistrate had no jurisdiction to hold an enquiry. Held, also, that the first-
class Magistrate ought to have held a preliminary enquiry uuder section 476,
in order that the complainant might have an opportunity of showing the truth
or hona files of the complaint. The Qusen v. Yenlava. Chandramma, I. L. B.,
7 Mad., 189 (1883).
Riitlit of coin- A charge of burglary and theft having been preferred against two persons
pininant to be the Magistrate before whom the charge was laid, after comparing the petition
1 v"""" of complaint with the papers submitte 1 to him by the police, who had made
an enquiry and reported the charge to be false, directed, without having
taken the examination of the complainant, that the case should be struck out,
and that proceedings should be instituted against the complainant under
section 182 of the Penal Code. Proceedings were accordingly taken, and
the complainant was ultimately tried and found guilty of an offence under
section 211. Held, on appeal, that the proceedings had been irregular and
should be quashed ; that the Magistrate should be directed to re-open the
enquiry into the charge of burglary and theft, first examining the complainant ;
and that, if after such examination he should be of opinion that the charge
was false, the appellant might be proceeded against under section 211 of the
Penal Code. In re Biyogi Bhagut, 4 Cal. L. R., 134 (1870 ).
Dismissal of 203. The Magistrate before whom a complaint is made or

coinpiai.it. to whoni it has boen transferred, may dismiss the complaint, if,
after examining the complainant and considering the result of the
investigation (if any) made under section 202, there is in his
judgment no sufficient ground for proceeding. In such case he
shall bri efly record his reasons for so doing.
Dismissal of When an original complaint is dismisse 1 under section 2)3 of the Code
complaint- 0f Criminal Procedure, 1882, a fresh complaint on the same facts before the
iieviynl of pro- game Magistrate cannot be entertained so long as the order of dismissal is
Fmni'ulspoHuiof not set aside by a competent authority. Kon-d Chandra Pal v. Gour Chand
case-Want of Aujhikari, I. L. It., 24 Cal, 28S (1897).
jurisdiction. '
Duty of Maris- When a case has not been disposed of under Criminal Procedure Code,
trnte toexamine jgg2 section 203 and the complainant's witnesses have been summoned, the
thenc^plaiu- Magistrate is bound to examine the witnesses tendered by the complainant
ant and is not entitled to acquit the accused on a consideration of the complain
ant's statement alone. Queen-Empress v. Sinnai Goundan, I. L. It., 20 Mad.,
388 (1897).
TOiniVlalnt— ^s a Senera' ru'e any person, having knowledge of the commission of
Withdrawal of an offence, may set the law in motion by a complaint, even though he is not
conplainant in personally interested or affected by the offence. The exceptions to this rule,
noT*TnCTound of whiou sect'ems 195 aad 198 of the Code of Criminal Procedure, 1882, are
for dismissal of examples, are exceptions created by Statute. There is nothing in the Code
WhoP'in"yôin- showing an intention to confine prosecution to the persons directly injured,
plain—Com- Where the offence charged is a "warrant" and not a "summons" case, a
plainant not a Magistrate ought to proceed with tin enquiry or trial in spite of the with-
*ble to 'refusal drawal of the complainant, if he finds the elements of an offence on the facts
to answer. set forth in the complaint. Section 248 of the Code applies only to a " sum
mons " case. Semble.—A complainant is not a witness punishable for refusal
to answer under section 485 of the Code, or under section 179 of the Penal
Code. In re Ganesh yaragan Satfte, I. L. B., 13 Bom., GOO (1889).
A Magistrate cannot dismiss a complaint under section 203 of the Code Dismissal of*
of Criminal Procedure, 1882, until he has examined the complainant to see ^^"s' dis-"'
whether there is prima facie evidence of a criminal offence. In exercising cretion-Nature
his discretion under section 203, the Magistrate ought not to allow himself to "^"^crction
be influenced by a consideration of the motive by which the complainant _•• Suifieiont
may have been actuated in moving in the matter, nor by any other consider- around," mean-
ations outside the facts which are adduced by tho complainant in support of p"ainant's
his complaint. In re Ganesh Narayan Sathe, I. L. R., 13 Bom. (F. B.) 590 motive.
(1889).
A complaint was filed, under section 499 of the Penal Code, against the 0ê<Jn}âttiu'.'
proprietors, editor, and printer of a newspaper for publishing' matter alleged nintte'raTready
to be defamatory. The Magistrate, before whom the complaint was lodged, published,
found that the publication complained of was a mere reproduction or re
publication of what had been previously printed and published in another
newspaper. He was, therefore, of opinion that, unless and until criminal
proceedings had been taken in respect of the earlier publication, a charge
of defamation could not properly be brought with regard to tho latter
publication. He, therefore, dismissed the complaint, under section 203 of
the Code of Criminal Procedure, 1882. Held, that the order of dismis
sal was improper. The Penal Cole, section 499, makes no exception in favour
of a second or third publication as compared with a first. If tho complaint
is properly laid in respect of a publication which is prima facie defamatory,
the Magistrate -is bound to take cognizance of the complaint, and deal with
it according to law. In re Howard, I. L. R., 12 Bom., 167 (1887).
Section 155 of the Code of Criminal Procedure, 1882, deals only with the Magistrate's
powers of police-officers. It confers no power or authority on Magistrates tc power to direct
5-
direct a 1local1 investigation
.Li ■ 1by iitho police,
i- or calliiifor a police
i- report.t V.It is
• nation
a 'o«a' by
investi-
the
not a proper course for a Magistrate, when a complaint is made before him of police,
an offence of which he can take cognizance, to refer the complaint to a po
lice-officer. He. is bound to receive the complaint, and after examining the
complainant to proceed according to law. In re Jankidas Guru Sitarzni, I. L.
R., 12 Bom., 161 (1887).
Where a deposition in the shape of a complaint is made orally or in writ- " Kininining "—
ing and is sworn to, the requirements of section 203 of the Code of Crimi- nin^ntûttested
nal Procedure, 1882, in regard to the examination of the complainant, arc by complainant
sufficiently satisfied. Held, therefore, where a Magistrate dismissed acora- »" mih-Irre-
plaint of criminal breach of trust without examining the complainant on oath, ?" y"
but after the complainant had sworn to the truth of the matters alleged in the
complaint, that the provisions of section 203 had been sufficiently complied
with, and if not, that the irregularity was covered by the terms of section
537. Held, also, that inasmuch as the complaint only amounted to a state
ment that the accused had, in consequence of certain arrangements made with
complainant's father, received certain moneys and had refused to render ac
counts, but contained no allegation that he had in fact realized and dis
honestly misappropriated any particular sum, and obviously was made for the
purpose of forcing him t> render accounts, the Magistrate was right in dis
missing it, since the facts alleged did not constitute criminal breach of trust.
Queen- Empress v. Murphy, I. L. R., 9 All., 666 (1887).
Sections 200 to 203 of the Code of Criminal Procedure, 1882, must be Dismissal 0/
read together, and a Magistrate dismissing a complaint under the provisions of complaint-Re
section 203 on any one of the three grounds, viz.—fl). If he, upon the state- officer who'is'nn
ment of the complainant re luced to writing under section 200, finds no accused person,
offence has been committed ; (2). If he distrusts the statement made by the
complainant ; and (3). If he distrusts that statement, but his distrust is not
sufficiently strong to warrant him in acting upon it, except upon a further
?86 Proceedings in Prosecutions. [Chap. XVI.
enquiry as provided for in section 202, must record liis reasons for so doing, for
if sucli reasons were not recorded it would be impossible for the High Court,
exercising its revisional powers under section 437 of the Code, to consider
whether the discretion of such Magistrate lias been properly exercised. It
was never contemplated that a Magistrate should call for a report from an
accused person under section 202 for the purpose of ascertaining the truth of
the complaint if such accused happened to be an officer subordinate to the Ma
gistrate. Where, therefore, a complaint was made against a police-officer,
and complainant's statement was duly recorded, and the Magistrate acting
under the provision of section 202 called for a report from such police-officer,
and acting upon that report dismissed the complaint under section 203 : Held,
that he had acted illegally, and that his order made under the last named
section should be set aside, ami the case proceeded with according to
law from the time at which the complaint was made and the complainant's
statement so recorded, liaidya Nath Sing v. MtupraU, I. L. R., 14 Cal.,
141 (188G).
KMratc»!'powor The u8e of the term " may take cognizance of any offence" in section 191
of—';M»'y take of the Code of Criminal Procedure, 1882, does not make it optional with a
roSSinirof. Mag'8trate t0 "ear a complaint, but refers rather to the action of the Magis
trate in taking cognizance of an offence in either of the specified courses in
which the facts constituting the offence may be brought to his notice.
He is bound to examine ihe complainant, and then can either issue sum
mons to the accused, or order an enquiry under section 202, or dismiss the
complaint under section 203. Umer AH v. Safer Ali, I. L. R., 13 Cal.,
334 (1886).
DisrolMBl of A complaint was made, before a Magistrate of the first-class, of an offence
v?vai "o? pro-'" punishable uniler section 323 of the Penal Code. The Magistrate recorded a
rwdiiiKi. brief statement by the complainant, but did not ask him if he had any witnesses
to call. An order was passed directing that "a copy of the petition of com
plaint should be sent to the police-station, calling for a report. on the matter,"
and on receipt of the report the Magistrate dismissed the complaint under sec
tion 203 of the Criminal Procedure Coile, 1882. There was nothing in the Ma
gistrate's original order to show that he saw reason to distrust the truth of the
complaint, nor did he direct any local investigation to be made by a police-
officer for the purpose of ascertaining the truth or falsehood of the com
plaint. Subsequently to the dismissal of the complaint, the same complainant
brought a fresh charge upon the same fact against the same persons in the
same Court, and upon this charge the accused were tried, convicted, and sen
tenced. Held, that the Magistrate had not complied with the provisions of
section 202 of the Code, and ought not, merely on the report he had received,
to have dismissed the first complaint under section 203. Held, also, that the
Magistrate in ordering a further enquiry, on receiving the complainant's second
petition, did not act contrary to any provision of the law, and that, consider
ing the circumstances under which the first complaint had been dismissed, a
further enquiry was necessary. Queen- Emprett v. Puran, I. L. R., 9 All.,
85 (188G).
Di»mi»Ml of When a charge has been preferred against a person, and the Magistrate
•on'i'ion'imder oeôre whom it was heard, after hearing the statement of the complainant,
•ection 21 1. f« but not those of his witnesses, dismissed the complaint, and subsequently, on
ual Code. the application of the person charged, granted him leave under section 470 to
prosecute the complainant for bringing a false charge : Held, that the pro
ceedings were not irregular, and that the Magistrate was justified in acting as he
had done. Held, also, that there is a distinction in the proceedings to be adopt
ed when a sanction is given under section 470, and the institution by the Court
of its own motion of proceedings under section 471. In re Gyan Chunder
Roy v. Protap Chvnder Da*«, I. L. It., 7 Cal., 208 (1881).
An order of dismissal under section 124 of Act IV of 1877 does not Diimjtwi of
operate as an acquittal. The Empress v. Thompson, I. L. H., 6 Cal.. 523 (1881). complaint after
A person made a complaint to the police that the accused had enticed partial
'<"• wanthearing
of at-
away his wife (a non-cognizable offence), und committed theft (a cognizable coraplahlan't
offence). The police enquired into the latter offence onlj* ; and, finding no .
prima facie case made out, reported to that effect to a Magistrate, who direct- c^S'™1,^
cd that that offence be expunged from the list of reported offences. Held, Revirai'of com-
that under the circumstances, there had been no dismissal of the complaint in PWnt.
respect of the former offence : and that there was no bar to the complaint
into that offence being taken up and proceeded with. The Government of
Bombay v. Shidapa, I. L. H., 5 Bom., 405 (1881).
A Magistrate before whom a complaint has been made, after examining Dismissal of
the complainant, but without examining his witnesses, dismissed the com- complaint with-
plaint under section 147 of the Criminal Procedure Code, 1872. Shortly ^"Ves^'n"
afterwards the person accused applied to the Magistrate, and obtained sane- conuilainnnt.
tion, under section 470 of the Code, to prosecute the complainant under sec
tion 211 of the Penal Code, and proceedings were thereupon commenced
before another Magistrate who subsequently committed the original complain
ant to the Court of Session. No application was made that a further enquiry
might be made notwithstanding the order of dismissal, field, that the pro
ceedings in tho original complaint had been terminated in a regular manner,
and therefore the order sanctioning the prosecution whs not illegal by reason
of the Magistrate not having examined the witnesses of the complainant.
In re Gyan Chunder Roy, 8 Cal. L. R., 267 (1881).
A Deputy Magistrate has no power to question an order made by his power o( I)e.
superior, sanctioning a prosecution under sections 182 and 211 of the Penal puty Magiatrate
Code. Whether such sanction has been rightly or wrongly given, is a question toM'ieationaane-
for the accused to raise before a competent Court. The Empress v. Irad Ally,
L L. R.( 4 Cal., 869 (1879).
A charge of theft was preferred by the petitioner, on the 7th October, j^mi,,,! 0[
1878, before the police, who thereupon instituted enquiries, which subse- complaint,
quently resulted in their finding the charge unproved. Meanwhile, on the loth
October, the charge was repeated in a complaint before a Magistrate of the
district, who directed the complainant and his witnesses to attend on a
particular day, but subsequently, without having examined them or the com
plainant, referred the matter to the Sub-Deputy Magistrate. That officer hav
ing reported the charge to be false, the Magistrate, on the 9th November,
wrote upon the police report, which had meanwhile, on the 26th October,
been submitted to him, the following direction, viz., "Show me false." On the
19th November, a counter-prosecution, under sections 211, 182 and 500 of the
Penal Co le, was sanctioned, and eventually, on the 22nd May, 1879, resulted
in the petitioner being convicted. While the counter-prosecution was pending
the petitioner, on the 22nd April, applied to the Magistrate to proceed with his
complaint according to law, but was informed that his complaint was dismiss
ed. On the following day the Magistrate recorded the following words :—
"Dismissed in accordance with my decision recorded in the police report under
section 147 of the Criminal Procedure Code.'' Held, that the complaint had
been improperly dismissed, and that the order of the Magistiate, dated 23rd
April, 1879, must be set aside. Sheikh Erad Ali v. Nasiburmissa Bibi
4 Cal. L. R., 534 (1879).
After complainant's preliminary examination the case was referred to the Diamiwil—
police for report, and complainant had notice to appear on 6th November Police n-port.
to hear the report. On 31st October, the Assistant Magistrate dismissed
the case upon the report of the police-officer without giving complainant an
opportunity to show cause against the dismissal. His order was set aside
by the High Court, and he was directed to conform to circular 5A, dated 7th
September, 1868. Bullet Singh v. Kaval Chowdhree, 17 W. R., 2 (1872)
288 Proceedings in Prosecutions. [Chap. XVII.
CHAPTER XVII.
Of the Commencement of Proceedings before Magistrate*.

issue of process. 204. (/) If, in the opinion of a Magistrate taking cogni
zance of an offence, there is sufficient ground for proceeding, and
the case appears t ) he one in which, according to the fourth
column of the second sc'iedule, a summons should issue in the
first instance, he shall issue his sumimns for the attendanc3 of
the accused. If the cass appears to be one in which, according to
that column, a warrant should issue in the first instance, he may
issue a warrant, or if he thinks fit, a summons, for causing the
accused to be brought, or to appear at a certain time before such
Magistrate or (if he has not jurisdiction himself) some other Magis
trate having jurisdiction.
(2) Nothing in this section shall be deemed to affect the pro
visions of section 90.
(3) When by any law for the time being in force any pro
cess-fees or other fees are payable, no process shall be issued un
til the fees are paid, and, if such fees are not paid within a reason
able time, the Magistrate may dismiss the complaint.
Magistrate may 205. {1) Whenever a Magistrate issues a summons, he
personal alter- nu7> ^ ne se?s rea9on 80 t° do, dispense with the personal atten
dance of ac- dance of the accused, and p rmit him to appear by his pleader
C'.ised.
(2) But the Magistrate inquiring into or trying the case may,
in his discretion, at any stage of the proceedings, direct the per
sonal attendance of the accused, and, if necessary, enforce such
attendanca in manner hereinbefore provided.
Practice-Pdirfa. Although there is no provision in the Criminal Procedure Code which
na»hin lady— protects pardanashin ladies from appearing in a Court of Justice, nevertheless
Personal ap- ft jg very undesirable to compel the attendance of such persons. It cannot be
Cûrt!"06"1 admitted as a general principle that pardanashin ladies whose evidence is re
quired in criminal trials are to bo allowed to compel the Courts to examine
them at some other place than the Court-house itself. Where a Magistrate
considered it necessary to take the evidence of a pardanathin lady, who ob
jected to appear in Court, the High Court directed him to make arrangements
so as to take her evidence either in an empty Court-room in the presence of
himself, the accused, and the pleader for the prosecution, or, if no empty Court •
room were available, in his own private room or some other room in the
Court-building. In re Basant Bibi, I. L. R., 12 All., G9 (1889).
Sessions Judge On an appeal from a convicti )n under section 302 of the Penal Code, it
taking opinion was objected on behalf of the appellant that the assessors had at the trial been
one jo?nT°s™ te- a'l°wecl to giv0 t,,eir opinion in one joint statement instead of separately,
ment instead of as required by section 30'J, Criminal Procedure Code, 1882. Held, that such
material'lrregu" an irregularity, though to be avoided in future, was covered by section 537
larity-Evi- of the Code, and no way prejudiced the accused, or vitiated the proceedings.
iaM~'\*A' '— ^ was furtner objected in the same appeal that the evidence of certain
Mode'of eiumi- " parda " ladies was inadmissible, inasmuch as it had not been taken in the
nation. presence of the accused as required by section 353 of the Code. It appeared
that the plan adopted both by the committing Magistrate and the Sessions
Judge was as follows :—The lady was placed in a passage screened from the
direct view of the Court , which, however, sat close by. The lady's voice
could be heard perfectly : a sworn interpreter, who was a member of the
family, was so stationed as to be able to see the lady all the time. It further
appeared that at the trial the prisoner himself raised no objection to the above
plan. Held, that the mode of examination adopted was a proper one, and
was virtually a hearing of the evidence in the presence of the accused, within
the meaning of the law. Hassan Khan v. 'I he Empress, Punj. Iiec, 95
(1887).
Held, whore a Magistrate had issued a summons to a " pardahnathin "" pardawuMn "
woman, alleged to be of good position, who was accused of an offence, that woman-Perao-
the Magistrate should have dispensed with the personal attendance of the "*.coined per
accused, and permitted her to appear by pleader, until such time as he had be- sou.
fore him clear, direct, and reliable prima facie proof that the accused had a
real charge to answer. In re Rahim Bibi, I. L. R., 6 All., 59 (1883).
• . Senihle, that in criminal cases

i "jpardahnasliin
. ,, " women are not of Z*Ztl''''i'!!''L.
woman— tmin"
right exempted from personal attendance at Court. Also that the word iiiation by com-
" inconvenience " in section 330 of the Code of Criminal Procedure, 1872, mission—Per-
empowers the Courts to allow examination by commission in criminal n?,"ci"'Ivmrt.
cases where a witness, according to the manners and customs of the
country, ought not to appear in public. The complainant in the case of
defamation alleging that she was a " pardanashin," applied to be examined
by commission. Held, that the fact that she was a complainant, and not
merely a witness, materially altered her position as regards the question
whether she ought not to be exempted from personal appearance in Court,
and that, under the circumstances, she ought not to be examined by
commission, but ought to attend personally to be examined in Court. Direc
tion to the Magistrate to make such arrangements for the examination
of the complainant in Court as should secure her privacy, consistent with
the recording of her evidence, according to law, in the presence of the
accused. Witnesses in criminal cases should not be examined by commission,
except in extreme cases of delay, expense or inconvenience. In re Farid-un-
nissa, I. L. R., 5 All., 92 (1882).
Held, that where tho personal attendance of an accused is dispensed with, Dispeiisms?
a recognizance bond, if such is deemed necessary, should be taken from him, lindane"0""
and not from his agent, binding him (the accused) to appear either in person acmsed - (js-
ur by an agent; and that a Magistrate has no legal authority to secure the at- cowiiance
tendance of an agent by such a bond. Heij. v. Lallubhai Jassubhai, 5 °" " ^ '
Bom. H. C, 64 (1868).
CHAPTER XVIII.
Of Inquiry into Cases triable by the Court of
Session or High Cocrt.
206. (V) Subject to the provisions of section 443, any YuWKt to O0
Presidency Magistrate, District Magistrate, SuMivisional Magis- mit for trial,
trate or Magistrate of the first-class, or any Magistrate empowered
in this behalf by the Local Government, may commit any person
for trial to the Court of Session or High Court for any offence
triable by snch Court.
1!»
290 Proceedings in Prosecutions. [Ch. XVIII.
(2) But, save as herein otherwise provided, no person triable

by the Court of Session shall be committed for trial to the High
Magistrate oftlio Court.A complaint of an offence made punishable by section 392 of the Penal
Code wag brought in the Court of a Magistrate of the second-class, who
mit for trial- hud heen invested with the powers described in section 206 of the Cri-
Case triable by minal Procedure Code. The Magistrate passed an order directing that
mid Mitral" tho en9uiry should be hold in his Court, and accordingly an enquiry was
of the first-class held under the provisions of Chapter XVIII of the Criminal Procedure Code,
accused!"1*6 °f and tl10, ac0U8ed was discharged. Held, that powers conferred under sec
tion 206 of the Criminal Procedure Code convey authority to carry into effect
any of the provisions of Chapter XVIII of the Code ; that the procedure to
be adopted under Chapter XVIII is not confined to cases exclusively triable
by a Court of Session, but is also applicable to cases which, in the
opinion of the Magistrate concerned, ought to be tried by such Court :
that the order of the Magistrate in the present case, directing enquiry to
bo held in his Court, must be taken to mean that, in his opinion, the
case referred to was one which ought to be tried by a Court of Ses
sion ; and that his order discharging the accused was therefore legal.
Ramsundar v. Nirotam, I. L. R., 6 All., 477 (1884).
w?tho1ut,ne"uri Where a Magistrate without jurisdiction commits an accused person to the
Action—Com"*" Sessions Court, such commitment is void and no reference to tho High Court
potent Court— is necessary to have it set aside. Empress v. Alim Mundle, 11 Cal. L. R., 55
Procedure.
Commitment to (1882). Where a Magistrate committed a person, charged with perjury in a trial
out*i0nei[amina- before himself, to £he Sessions without examining the witnesses for the
tion of witnesses prosecution : Held, that the commitment was illegal. Queen v. Chinna
quashed. Vedagiri Chetti, I. L. R., 4 Mad., 227 (1881).
Committal of ac- It is not illegal for a Magistrate to commit an accused to the Sessions
cused without without examining him or his witnesses. The Magistrate, when he has pre-
or*Ws'"witnM»es Pared the charge, is bound to read it to the accused, and to ask him if he
—Appearance of wishes to have any witnesses summoned to give evidence on his behalf at the
Session' b' *" Sessions. The Magistrate cannot refuse to permit an accused to attend at the
mTOktear!'V Sessions by mooktear. Queen v. Hurnalh Roy, 2 W. R., 50 (1865).
Procedure in 207. The following procedure shall be adopted in inquiries
iSory ?r before Magistrates where the case is triable exclusively by a Court
commitment. of gessjon or High Court, or, in the op:nion of the Magistrate,
ought to be tried by such Court .
208. (i) The Magistrate shall, when the accused appears or
Taking of evi is brought before him, proceed to hear the complainant (if any),
dence produced. and take in manner hereinafter provided all such evidence as m ty
be produced in support of the prosecution or in behalf of the ac
cuseds as may be called for by the Magistrate.
(2) The accused shall be at liberty to cross-examine the wit
nesses for tho prosecution, and in such case the prosecutor may
re-examine them.
(3) If the complainant or officer conducting the prosecution,
Process' for pro the accused, applies to the Magistrate to issue process to compel
duction^ fur
ther evidence, or
Ss. 207-208] Proceedings in Prosecutions.
the attendance of any witness or the production of any document

or thing, the Magistrate shall issue such process unless, for rea
sons to be recorded, he deems it unnecessary to do so.
(4) Nothing in this section shall be deemed to require a

Presidency Magistrate to record his reasons.
In a trial before a Court of Session or a High Court the public prosecutor Public pro-
conducting the case for the Crown is not bound to call as a witness for the ^^"ncfore H
Crown or to put into the witness-box for the purpose of cross-examination any Jonrt „f ses-
of the witnesses appearing in the calendar as witnesses for the Crown whose sion or High
evidence is in his opinion unnecessary. Queen-Empress v. Durga, I. L. R., b°",rlu"o call
16 All., 84 (1893). »U witnesse» in
the calendar.
It is the duty of a Sessions Court to examine all the witnesses sent up by Rejection
the commiting Magistrate. That Court is not justified in rejecting any of the Jj^j^nrt0ffwit-
witnesses so sent up unless it has good reason to believe that such witnesses ,,esses scut up
came into the Court-house with predetermined intention of giving false evi- th« commit-
dcnce. Queen-Empress v. Banlchandi, I. L. R., 15 All., 6 (1892). M«*rl9tra,c-
At a trial before the High Court in the exercise of its original criminal witness for the
jurisdiction, it is not the duty either of the prosecution or of the Court to exa- Crown not
mine any witness merely because he was examined as a witness for the Crown 7 nsirial thoturii
before the committing Magistrate, if the prosecution is of opinion that 110 "lamincd lief"*'
reliance can be placed on such witness's testimony. All that the prosecution theconiniittinK
is bound to do is to havo the witnesses who were examined before the com- M*ri,trat*'
niitting Magistrate present at the trial so as to give the Court or Counsel for
the defence, as the case may be, an opportunity of examining them. Queen-
Empress v. Stanton and Flynn, I. L. R., 14 All., 521 (1892).
Under sections 209 and 210 of the Criminal Procedure Code, 1882, a Mwiatraie
Magistrate holding a preliminary enquiry ought to commit the accused to the nonnd to com-
Court of Session when the evidence is enough to put the party on his trial, «/ casT^ \
and such a case obviously arises when credible witnesses make statements mndo out.
which, if l>elieved, would sustain a conviction. Queen-Empress v. Namdeti
Sattaji, I. L. R., 11 Bom., 372 (1887).
Where a Sessions Judge gave it as :i suflkient reason for the non-produc- Duty of the pro-
tion of certain witnesses in Court on the part of the prosecution that they had ,^r"l'S'!tncss's
been examiued by the committing Magistrate against the express wish of the
police-officer in charge of the prosecution : IleM, that that was not a valid
ground for the non-production of the witnesses in the Sessions Court. In
conducting a case for the prosecution all the persons who are alleged or
known to have knowledge of the facts ought to be brought before the Court
and examined. Queen-Empress v. Ram Sahai Loll, I. L. R., 10 Cal., 1070
(1884).
When an accused person is first brought before a Magistrate, and a re- Koiuand—Ne-
mand is required by the prosecutor, it is ordinarily sufficient to show by the fêVSdencete-
evidence of a police-officer that the police are in possession of information, fore refining
believed to be reliable, that the accused has committed an offence ; but when
the accused is again brought up after remand, and a further remand is needed,
some direct evidence of the guilt of the accused should be required to justify
the Magistrate in refusing bail, and with such remand the necessity for pro
duction of evidence of guilt becomes stronger. Ponnnsami Chettiv. The Queen,
I. L. R., 6 Mad., 69 (1882).
292 ■ Proceedings in Prosecutions. [Ch. XVIII.
Reasonable Section 194 of the Criminal Procedure Cnrle, 1872, must be read as a proviso
manddnot0r8upi to 8eut'l,n 1SK>, and authorises a Magistrate for reasonable cause to remand an
ported by sworn accused person to jail without examining any witnesses. Where evidence was
ctentm0ny 8UlB" ava''able, but it appeared necessary to the Magistrate to defer the examination
of witnesses in order that further evidence may be produced (so that the enquiry,
when commenced, might be continuous): Held, that such a reason recorded by
the Magistrate, although not sworn to, justified a remand for five days and a
further remand for four days. An accused person has a right to have the
evidence against him recorded at as early a period as possible, and the fact
that there is or may be a great body of evidence forthcoming against him is
not a ground for detention for an inordinate period. Per Kerman, J. — When
a Magistrate defers the examination of witnesses, adjourns the enquiry, and
remands the prisoner under section 194 of the Code, he is bound to express
clearly in the record the reasonable cause from which such action becomes
necessary or advisable. Manikan Moduli v. The Queen, I. L. R., 6 Mad., 63
(1882). '
Duty of prose- ^ '* prima facie the duty of the prosecution to call all the wit-
cution—Infer- nesses who prove their connection with the transactions connected with
o"Cfa!°uroto^raii ,'"3 Pr°secution, and who must be able to give important information,
witnesses. If such witnesses are not called without sufficient reason being shown, the
Court may properly draw an inference adverse to the prosecution. The only
thing that can relieve the prosecutor from calling such witnesses, is the
reasonable belief that, if called, they would not speak the truth. No such
corresponding inference can be drawn against an accused. The Empress v.
Dhwmo Kasi, I. L. it., 8 Cal., 121 (1881).
Service of sum- ^ne mere showing to a witness of a summons issued under section 186 of
moot. the Criminal Procedure Code is not sufficient service. Either the original
should be left with the witness, or should be exhibited to him and a copy of
it delivered or tendered. Reg. v. KarsanJal Danatram,h Bom. II. C, {Crown
Cases) 20 (1868).
when accused 209. (1) When the evidence referred to in section 208,
Sfwhanred! subsections (/) and (3), has been taken, and he has (if necessary)
examined the accused for the pnspose of enabling liim to expbiin
any circumstances appearing in the evidence against him, snch
Magistrate shall, if he finds that there are not sufficient grounds
for committing the accused person for trial, record his reasons
and discharge him, unless it appears to the Magistrate tint such
person should be tried before himself or some other Magistrate
in which case he shall proceed accordingly.
(2) Nothing in this section shall be deemed to prevent a

Magistrate from discharging the accused at any previous stage
of the case if for reasons to be recorded by such Magistrate he
considers the charge to be groundless.
M Kistrate Under sections 209 and 210 of the Criminal Procedure Code, 1882, a
bound to" com- Magistrate hol>iing a preliminary enquiry ought to commit the accused to the
mit when Court of Session when the evidence is enough to put the party on his trial,
is*" made "out antl 8Uch case obviously arises when credible witnesses make statements which ,
pwnin»taoiMi»ed. if believed, would sustain a conviction. Queen- Empress v. Xamrfeo Satniji.
I. L. B., 11 Bom., 372 (1887).
Where a Magistrate of the first-class discharged, under section 209 of the Order of the
Code of Criminal Procedure, 1882, a person charged with an offence exclu- J^™^^".
sively triable by the Court of Session, and the District Magistrate directed bim, tion tse for
under section 436, to commit the accused to the Court of Session, and a coin- committal »
mitraent was made, but the Sessions Judge referred the case, under section b). flrs*I
215, for the orders of the High Court : Held, that the order of the District cia^s Magistrate
Magistrate under section 430 was not ultra vires, and that the commitment IjJIJIivaMttyot
thereunder to the Court of Sessions was good, and could not be quashed HUch commit-
under section 215. Queen-Empress v. Pirya Gopal, I. L. B., 9 Bom., 100 aent-tviro
(1884).
A complaint of an offence made punishable by section 392 of the Penal Discharge of ac-
Code was brought in the Court of a Magistrate of the second-class, who had CU8Cd-
been invested with the powers described in section 206 of the Code of Criu.i-
nal Procedure. The Magistrate passed an order directing that the enquiry
should be in his Court, and accordingly an enquiry was held under the provi
sions of Chapter XVIII of the Code ; that the procedure to be adopted um!er
Chapter XVIII is not confined to cases exclusively triable by a Court of Ses
sion, but is also applicable to cases which, in the opinion of the Magistrate
concerned, ought to be tried by such Court ; that the order of the Magistrate
in the present case, directing enquiry to be held in his Court, must be taken to
mean that, in his opinion, the case referred to was one which ought to be
tried by a Court of Session ; and that his order discharging the accused was
therefore legal. Ramsunder v. Nirolam, I. L. E., 6 All., 477 (1884).
An officer
Criminal invested
Procedure, with
1882, special
should powers
rarely, undertrysection
if ever, a case34himself
of theunder
Codesec-
of y,lt^T
^YiTcer'"invested
"gê'ciul
tion 209 of the Code, where it appears from some of the evidence that the powers,
accused might have been charged with an offence bej oml the jurisdiction of
the Magistrate to take cognizance of. Empress v. Paramananda, I. L. B., *
lOCal., 85 (1883).
A Magistrate enquiring into a case exclusively triable by the Court of Improper di»-
Session is not bound to commit the accused person for trial, where the evi- of^Majdstm"
dence for the prosecution, if believed, would end in a conviction ; but is com- making enquiry
petent, if he discredits such evidence, to discharge the accused. The High Sessions
Court can only interfere under section 297 of the Code of Criminal Procedure, court's '^>ower
1872, in such a case, if it comes to the conclusion that the Magistrate has of revision,
illegally and improperly under-rated the value of such evidence. The meaning
of the words " sufficient grounds " in section 195 of the Code explained. In
re Lachman v. Jwala, I. L. R., 5 All., 161 (1882).
The discharge of an accused person by a Presidency Magistrate, under Effect of order
section 87 of the Presidency Magistrates Act IV of 1877, is such & termina- of discharge of a
tion of the prosecution as entitles the accused to maintain an action for {Jf^"ffencetiy
malicious prosecution. Venu v. Coorya Narayan, I. L. B., 6 Bom., 376 (1881). a Presidency
Magistrate.
When an accused person has been discharged by a subordinate Magis- Discharge—
trate under section 215 of the Code of Criminal Procedure, 1872, and the Hevivul of pro-
Magistrate of the district,' after calling for the proceedings, considers that the •ocution.
order of discharge was improper, the proper course for the Magistrate of the
district to adopt is to refer the proceedings for the orders of the High Court,
and not to order a new trial by another subordinate Magistrate. Imperatrix
v. Gowdapa, I. L. B., 2 Bom., 534 (1878).
It is illegal and ultra vires on the part of a Magistrate to revive before Dischnrge of
himself criminal proceedings against an accused who has already been dis- ^f"^,^,^^.
charged under section 215, Code of Criminal Procedure, 1872, where no imis-Mngis-
further evidence is procurable thau that which was before the Court in the first trite—Compa-
occasion. Per Mabkby, J.— When the discharge has been improper, the only tent Wltne*»-
proper course open to a Magistrate is to report the case to the High Court for
294 Proceedings in Prosecutions. [Ch. XVIII.
orders, and that Court, if of opinion that the accused has been improperly
discharged, will order a retrial. Per curiam.—A Magistrate cannot himself
be a witness in a case in which he is the sole Judge of law and fact. Per
Mark by, J.—Where in such a case he has given his evidence and convicted
the accused, his having so acted makes the conviction bad. Per Pkinsep, J.—
The conviction is not absolutely bad. It is open to the Court to uphold the
conviction, if it is of opinion that, after rejecting the Magistrate's evidence,
there is other evidence sufficient if believed to support the conviction. This
being a proceeding under section 297 of the Code, the Court refused to go
into the evidence. The Empress v. Donnelly, I. L. B., 2 Cal., 405 (1877).
Discharge An order of a District Magistrate, directing the revival of certain criminal
under section proceedings against the petitioners who had been discharged under section 215
proceeding of the Code of Criminal Procedure, 1872, by a subordinate Magistrate after
evidence had been gone into, quashed as illegal and ultra vires. As the case
was one of improper discharge and came before the Magistrate under section
295 of the Code, the proper and only course for him was to report it for orders
to the High Court, which, if of opinion that the accused were improper
ly discharged, might, under section 297, have directed a retrial. In re Mohesh
Mistree, I. L. R., 1 Cal., 282 (1876).
When charge is 410. (/) When, upon such evidence being taken and such
io be framed, examination (if any) being made, the Magistrate is satisfied that
there are sufficient grounds for committing the accused for tria1,
he shall frame a charge uuder his hand, declaring with what offence
the accused is charged
Cham to be (2) As soon as the charge has been framed, it shall be read
copy furnisholl, and explained to the accused, and a copy thereof shall, if he so
to Bcoii««i. requires, be given to him free of cost.
For form of charges, see schedule V, £/o. 28.

Alternative The accused was charged, in the alternative, by the trying Magistrate
charge- Contra- 8S follows: —"I, W. W Drew, Magistrate, first-class, hereby charge you,
menu5 Chawe R*mV Sajabarao, as follows :—That you, on or about the 13th day of October,
in alteriiative 1882, at Nandarpada, stated that you had seen Vishnu Varman and Mahadu
ofJence^'uiider Lakshman carrying teak-wood from Gohe forest to Narayan Ranichandra,
two different range forest officer, and on 14th February, 1885, you stated on oath before
v^'ona?' the tiie first-class Magistrate at Pen, at the trial of these persons, that you did
Venal Code. ^ gee w|,ere tnov ]m\ brought the wood from, and thereby committed an
offence punishable under section 182 or section 193 of the Indian Penal Code and
within my cognizance ; and I hereby direct that you, Rauiji Sajabarao, be tried
by the said Court on the same charge." At the trial the accused asserted the
truth of the former of these two statements, and denied having made the
other. The Magistrate was unable to find which of them was false, and con
victed the accused, in the alternative, either under section 182 or section 193
of the Indian Penal Code. Held, that the charge watt bad in law, being an
alternative charge in a form forbidden by section 233 of the Criminal Procedure
Code, 1882, which directs that, for every distinct offence of which any person
is charged, there shall be a separate charge. Nor could the accused be tried upon
a charge-framed in the alternative as in the form given in Schedule V—XXVIII
(4) of the Criminal Procedure Code. For, upon the facts alleged, there was
no way of charging him with one distinct offence on the ground of self-con
tradiction. He could not successfully be charged under section 193 of the
Penal Code in contradictory statements, because lie only made one deposition,
in which there were no discrepancies ; and, similarly, he could not be charged
under section 182 of the Penal Code, for he only once gave information to a
Ss. 210-211J Proceedings in Prosecutions. 295
public servant. Held, also, that having regard to sections 225, 232, and 537
of the Code, the accused, convicted upon such a charge, must be held to
have been misled in his defence, and his conviction and sentence reversed.
In charges founded upon supposed contradictory statements, every presump
tion in favor of the possible reconciliation of the statements must be made.
Under section 172 of the Indian Forest Act, VII of 1878, a forest officer
is a public servant within the meaning of the Penal Code. Any false infor
mation given to him with the intent mentioned in section 182 of the Penal
Code is punishable under Unit section, whether that information is volunteer
ed by the informant, or is given in answer to questions put to hiui by
that officer. Queen-Empress v. Ramji Sajabarao, I. L. B., 10 Bom., 124
(1885).
In a charge under section 193 of the Penal Code, it is not necessary to Alternative
allege which of two contradictory statements upon oath is false, but it is Cy*TK^9_£j)S0
sufficient (unless some satisfactory explanation of the contradiction should be tradfctory state-
established) to wurrant a conviction of the offence of giving false evidence to ments—Assign-
Bhow that un accused person has made one statement upon oath at one time, "t^'met't^'iot
and a directly contradictory statement at another. Per DUTH01T, J.—Every necessary,
possible presumption in favour of a reconciliation of the two statements
should be made ; and it must be found that they are absolutely irreconcilable
before a conviction can be had upon the ground that one of them is necessari
ly false. The English cases upon this subject are irrelevant to the interpreta
tion of the law of Indiu, since the Indian Legislature has not followed the
law of England in regard to penury. Queen-£mpreia v. Ghulet, I. L. B., 7
All., 44 (1884).
21 1. (i) The accused shall be required at once to give in, List of witness-
01 ally or in writing, a list of the persons (if any) whom he wishes ^ triul!e'enco
to be summoned to give evidence on his trial.
(2) The Magistrate may, in his discretion, allow the accused Further list,
to give in any further list of witnesses at a subsequent time ; and,
where the accused is committed for trial before the High Court,
nothing in this section shall be deemed to preclude the accused
from giving, at any time before his trial, to the Clerk of the
down a further list of the persons whom he wishes to be sum
moned to give evidence on such trial.
If an accused person, on being called upon under section 211 , Act X of witnesses-
1882, to give orally or in writing a list of the persons whom he wishes to be Right of ac-
Humiiioned to give
• . evidencer. on his ...trial,. declines to give in such- list,! he cannot CU9ed 40 mim-
na¥e
compelI it.
the u
Magistrate. . . after committal 1 to .
issue any summons for W)tl)eKKJ*a
witnesses on moned in hi.
his behalf. Neither under such circumstances will the Sessions Judge be ob- defence when
liged to issue summonses for the attendance of such witnesses unless he is {ogive in'alUii
satisfied that their evidence may be material. Queen-Empress v. Shakir Alt, in the MagU-
I. L. B., 19 All., 502 (1897). trat«'3 Court.
Proceedings under section 145 of the Code of Criminal Procedure, 1882, Attendance of
should, in all points of procedure, be regarded as summons-cases, and although Sftoentam
it is discretionary with a Magistrate to issue a summons on a witness in such attendance,
a case, yet, when any one of the parties applies at a proper time for process to
secure the utteudance of his witnesses, the Magistrate should not arbitrarily
refuse his assistance ; and where such refusal is made, it is incumbent on the
Magistrate to record his reasons for such refusal. In re Uurendro Narain
Singh Chowdhry, I. L. B., 11 CaL, 762 (1885).
Proceedings in Prosecutions. [Ch, XVIII.
Power oi m»- 212. The Magistrate may, in liis discretion, summon and
Sitae* suck "it- examine any witness named m any list given in to him under
section 211.
Sessions case— The fact that an accused person, against whom a charge has been framed
ved-Exaintaa-" bv a Magistrate under the provisions of section 210 of the Code of Criminal
lion b.v Mat-is- Procedure, 1882, has reserved his defence does not preclude the Magistrate
irate of wit- from acting under section 212 of the Code. In re Rttdra Singh, I. L. K., 1«
ISSdS! AU., 380 (1896). 9
Treatment of It is illegal on the part of a Coutt to threaten witnesses with the penalties
Couru"69 y °f the law unless they are evidently giving wilfully false evidence or persis
tently refusing to give evidence of facts which must be within their knowledge.
Queen-Empress v. Hargobind Singh, I. L. H., 14 AU., 242 (1892).
Order of com- 213. (2) When the accused, on beiug required to give in a
"" n,:" ' list under section 211, has declined to do so, or when he has
given in such list and the witnesses (if any) included therein
whom the Magistrate desires to examine have been summoned
and examined under section 212, the Magistrate may make an
order committing the accused tor trial by the High Court or
the Court of Session (as the case may be), and (unless the
Magistrate is a Presidency Magistrate) shall also record briefly
the reasons for such commitment.
(2) If the Magistrate, after hearing the witnesses for the de
fence, is satisfied that there are not sufficient grounds for commit
ting the accused, he may cancel the charge and discharge the
accused.
rtheren uir A District Magistrate who refers a case to a subordinate Magistrate for
-"uwer^DbJ further enquiry has no authority to fetter him in the exercise of his judicial
trict Magistrate discretion as to the question whether the case should or should not be
J-ouaoUtuf * committed to the Court of Sessions. Queen- Empress v. Munisami, I. L. R.,
15 Mad., 39 (1891).
Under sections 209 and 210 of the Criminal Procedure Code, 1882, a
bimi'd'to8 eom- Magistrate holding a preliminary enquiry ought to commit the accused to the
mlt 'when pri. Court of Session when the evidence is enough to put the party on his trial,
*a facie case anj 8UCh a case obviously arises when credible witnesses make statements
'atwinit which, if believed, would sustain a conviction. Queen-Empress v. Namdev
accused. Satcaji, I. L. K., 11 Bom., 372 (1887).
Alternative In a charge under section 193 of the Penal Code, it is not necessary to
charges- allege which of two contradictory statements upon oath is false, but it is
—Cwitraldietory sufficient (unless some satisfactory explanation of the contradiction should
statement*— be established) to warraut a conviction of the offence of giving false
'Assignment of evjdence to show that an accused person has made one statement upon
not nlcessar". oath at one time, and a directly contradictory statement at another. Per
Dothoit, J.—Every possible presumption in favour of a reconciliation of the
two statements should be made, and it must be found that they are
absolutely irreconcilable before a conviction can be had upon the ground
that one of them is necessarily false. The English cases upon this subject
are irrelevant to the interpretation of the law of India stnee the Indian
Legislature has not followed the law of England in regard to perjury.
Queen-Empress v. Ghulet, L L. H., 7 All., 44 (1884).
Ss. 212-213] Proceedings in Prosecutions. 297
The signature of a Magistrate to a warrant of commitment under section Warrant of
303 of the Code of Criminal Procedure, 1872, should not be affixed by aggJJJJSTol
stamp. In summary trials under the provisions of Chapter XVIII of the Magistrate—
Code of Criminal Procedure, 1872, the record in non appealable cases and the' l^JJ^JJl""'
judgment in appealable cases must be written by the Magistrate. A Magistrate judgment —
in such cases is not authorised to depute that duty to a clerk, nor to affix bis Signature—
siguature to the record or judgment by a stamp". Where a head constable 2{«ui •un?"
of police of many years' service was charged with criminal intimidation with mary trial of
a view to prevent a person from giving evidence against serious offenders and serious offciiee.
the District Magistrate tried the case summarily under the special power given
by section 222 (10) of the Code : Held, that the case ought not to have been
tried summarily. Subramana Anyar v. The Queen, I. L. B., 6 Mad., 3%
(1883).
In prosecutions for giving false evidence under section 193 of the Penal Contradictory
Code, the case of each person accused should be separately enquired into, and, statements—
if committed for trial, separately tried. It is wholly erroneous to include Joinder of char-
them in one joint charge. It is not of itself sufficient to warrant a conviction £n»r*o. rn*,no
for giving false evidence that an accused person has made one statement on
oath at one time, and a directly contradictory one at another. The charge
must not only allego which of such statements is false, but the prosecutor
must be prepared with confirmatory evidence independent of the other con
tradictory statement to establish the falsity of that which is impeached as
untrue. Section 455 of the Criminal Procedure Code, 1872, is no authority
for framing against a person accused of giving false evidence, who has made
one statement on oath on one occasion, and a directly contradictory one on
oath on another occasion, a (barge in the "alternative," that word, as used
in that section, meaning that where the facts which can be proved make it
doubtful what particular description of offence an accused person has com
mitted, the charges may be so varied or alternated as to guard against his
escaping conviction through technical difficulties. Held, therefore, where three
persons were committed for trial jointly charged with " having on or about
the 26th September, 1881, or the 18th October, 1881, being legally bound
npon oath to state the truth, knowingly on those days, regarding the same
subject, made contradictory statements upon oath, " and thereby committed
an offence punishable under section 193 of the Penal Code, and such persons
were jointly tried on such charge ; that such charge was bad for being single
and joint against the three accused persons, instead of several and specific
in regard to each of them : that it was further bad because it did not dis
tinctly and in terms allege which of the statement was false ; that, assuming
a committal upon so faulty a charge should be allowed to stand, the Court
of Session should have prepared a fresh charge against each of the accused
persons, specifically setting forth the statement alleged to be false, and
should then have proceeded to try each of them separately ; and that, there
being no evidence that either of the statements made by two of such persons
was false, except that it was contradicted by the other, the charge against such
persons was not sustainable, there being no sufficient evidence that either of
the statement was false. Empress of Iiulia v. Niaz Alt, I. L. R., 5 All.,
17 (1882).
The duty of a committing officer is to ascertain whether by the evi- Duty of com-
dence for the prosecution a prima facie case is made out against an accused, mitting officer.
The Queen v. JJaha Singh, 3 All. II. C, 27 (1871).
Where there is a riot and fight between two factions, the member* of Order of com"
each party should be committed for trial separately, and not all together mltnwnt.
Queen v. Durzoolla, 9 W. R., 33 (1868).
298 Proceedings in Frosecuttons. [Ch. XVIII.
Committal of It is not illegal for a Magistrate to commit an accused to the Sessions

accused with- without examining him or his witnesses The Magistrate, when he has pre-
him orhis'wli? pored the charge, is bound to road it to the accused, and to ask him if he
nesses—Ap- wishes to have any witnesses summoned to give evidence on his behalf at
cu9ednCat0'the t'10 Se88'on8- '''he Magistrate cannot refuse to permit an accused to attend
t-ession* by it the Sessions by Mooktear. Queen v. Hurnath Roy, 2 W. R., 50 (1865).
Mooktear.
Person charged 214. If any person (not being an European British sub-
Sy-etowmr"~ ject) is accused before a Magistrate other than a Presidency Magis-
fcropewi'Bri- tra*;e °f uavhig committed an offence conjointly with an European
ti«h lubject. British subject who is about to be committed for trial, or to be
tried, before the High Court on a similar charge arising out of the
same transaction, and the Magistrate finds that there are sufficient
grounds for committing the accused for trial, he shall commit him
for trial before the High Court, and not before the Court of
Session.
Quashing com- 215. A commitment once made under section 2 1 3 or sec-
Snn,2i3ldor tion 214 by a competent Magistrate or by a Court of Session under
m- section 477, or by a Civil or Revenue Court under section 478,
can be quashed by the High Court only, and only on a point of
law.
High Court's The High Court is competent, in the exercise of its power of revision
power of revi- under section 297 of the Code of Criminal Procedure, 1872, to quash acommit-
»ion- ment made by a Court of Session under the provisions of section 472 of the
Code. Empress of India v. Lachman Singh, I. L. R., 2 All., 398 (1879).
Order ofDistrict Where a Magistrate of the first-olass discharged, under section 209 of the
a>rPscctimi 438 Code of Criminal Procedure, 1882, a person charged with an offence exclusivly
for committal triable by the Court of Session, and the District Magistrate directed him,
of a I'*™"} .t,i»" under section 436, to commit the accused to the Court of Session, and a com-
cl"sTMngis!r«te '"itment was made, hut the Sessions Judge referred the case under section 215
—Validity of for the orders of the High Court : Held, that the order of the District Magistrate
mentC°niDlit" "m'er section 436 was not ultra vire«, and the commitment thereunder to
the Court of Session was good, and could not be quashed under section 215.
Queen-Empress v. Pin/a Gopal, I. L. R., 9 Bom., 100 (1884).
.^harefloflldiu" .A Magistrate having committed a person for trial by the Court of
tery-With- Session on a charge of adultery, immediately afterwards on the representation
^pc\rMon-£l^ of tn0 Prosecutor tllat ne wished to withdraw from the prosecution, discharged
charge of the accused. Held, that the order of discharge was bad, as under sections 196
accused. and 197, Explanation, Criminal Procedure Code, 1872, a commitment once made
can be quashed by the High Court only. Empress of India v. Jangbir, I. L. R.,
4 All , 160 (1881).
men?!1 l"°mnlil" Where an accused person had been discharged by a subordinate Magistrate
and the District Magistrate directed the committal of the accused to the Court of
Session under section 4'M> of the Code of Criminal Procedure, 1882, without
calling upon him to show cause why he should not be committed : Held, that
tho order of committal and the commitment made thereunder were illegal.
The Queen v. Kanjamalai Padayachi, I. L. R., 6 All., 372 (1883).
en"uiry-l7)egal Where sanction to the prosecution of a person for the offence of using
commitment, certain evidence known to be false was granted by a Court to which the Court
in which such evidence was used was not subordinate, and such sanction did
not specify the place in which, and the occasion on which, such offence was
committed, and the Court granting the sanction did not make any preliminary
enquiry, although such an enquiry was " necessary." in the sense of section 476
of the Code of Criminal Procedure, 1882, held, that the indispenable preliminary
conditions of section 195 of the Code being wanting to the prosecution, the
committing Magistrate was incompetent to entertain the case, and the com
mitment was illegal and should be quashed. Held, also, that the fact that there
was not any evidence to connect such person with the use of such false evi
dence was a defect in law sufficient to justify the quashing of the commitment.
Empress v. Narotam Das, I. L. R., 6 All., 98 (1883).
The High Court has power to quash an illegal commitment at any stage illegal commit-
of the case. The Empress v. Shibo Behara, I. L. R., 6 Cal. 584 (1881). ment.
A commitment for trial under the provisions of section 211 of the Penal Commitment-
Code for knowingly instituting a false charge with intent to injure the persons ^g^tnforma"*
accused is not illegal merely because the complaint which the aceused made tion.
has not been judicially enquired into, but is based on the report of the police
that the case was a false one. The Empress v. Salik Roy, I. L. R., 6 Cal.,
582 (1881).
Where the accused was, by a Magistrate of first-class, committed for trial t»i»e evidence
by the Sessions Court on a charge of having given false evidence in a judicial —c°mmltmc"t>
proceeding before the Sessions Judge, there being no Assistant Judge cr Joint
Sessions Judge : Held, that the commitment could not be quashed, there being
no error in law, and the case must, therefore, be transferred for trial to another
Court of Session. In such a case as the above the better course would be
for the Magistrate to try the case himself, and, if ho is incompetent to pass a
sufficient sentence, for the Sessions Judge to refer the case to the High Court
for enhancement of sentence. Reg. v. Guji Kom Ranu, I. L. R., 1 Bom., 311
(1876).
216. When the accused has given in any list of witnesses Summons to
under section 21 1 and has been committed for trial, the Magis- de'fem^wheu
trate shall summon such of the witnesses included in the list, " mm
as have not appeared before himself, to appear before the Court
to which the accused has been committed :
Provided that, where the accused has been committed to

the High Court, the Magistrate may, in his discretion, leave
such witnesses to bo summoned by the Clerk of the Crown, and
such witnesses may be summoned accordingly :
Provided, also, that, if the Magistrate thinks that any wit- Kctusai to »um-
ness is included in the list for the purpose of vexation or "^"^
delay, or of defeating the ends of justice, the Magistrate may unless deposit
require the accused to satisfy him that there are reasonable
grounds for believing that the evidence of such witness is material,
and, if he is not so satisfied, may refuse to summon the witness
I recording his reasons for such refusal), or may before summon
ing him require such sum to be deposited as such Magistrate
thinks necessary to defray the expense of obtaining the attendance
of the witness and all other proper expenses.
3oo Proceedings in Prosecutions. [Ch. XVIII.
Refusal by Upon the committal of certain persons for trial before the Sessions
ûmmo^wit-10 Court for offences under the Penal Code, each of the prisoners, under
ness—Witness section 211 of the Criminal Procedure Code, 1882, gave in a written list of
summoned by the persons whom he wished to be summoned to give evidence at the trial,
rowcrof 8es-~" On each of thobe lists, the name of a particular person was entered, who
sions Juclfre to objected under section 216 to be summoned, on the ground that the summons
summons was desired for vexatious purposes only, and that theie were no reasonable
new. grounds for believing that any evidence he could give would be material.
Upon this objection, the committing Magistrate passed an order requiring
the prisoners to satisfy him that there were reasonable grounds for believing
that the objector's evidence was material, and, having heard arguments on
both sides, passed an order refusing to issue the summons. The only ground
stated by the Magistrate for this order was, that he thought the reasons
assigned for the application to have the objector summoned were insuffi
cient. Subsequent to the order, and before the trial in the Sessions Court
had begun, the Sessions Judge, upon an application filed on behalf of the
prisoners, passed an order directing that the objector should be summoned
to give evidence. The order assigned no reason, and was passed in the ab
sence of the objector, or of any person representing him, and without notice to
show cause being issued to him. The objector applied to the High Court for
revision of the order on the ground that the Sessions Judge had no jurisdic
tion to make it : Held, that when a Magistrate refuses, under section 216 of
the Criminal Procedure Code, to summon a witness included in the list of the
accused, he must record his reasons for such refusal, and such reasons must
show that the evidence of such witness is not material ; that the ground
stated by the Magistrate, viz., that the reason assigned for the application
to have the objector summoned were insufficient, did not show that the
evidence was not material ; that the Sessions Judge had jurisdiction to make
the order complained of ; and that, even if he had not, it would not
under tic circumstances be desirable to interfere with his order in revision
Per Straight, J., that section 540 is not the only provision of the Code Which
confers on a Sessions Judge powers of the kind exercised by him in this case.
Under section 291, though the summoning of witness by an accused through
the medium of the Sessions Judge is not a matter of right, yet the Judge
has an inherent power, if he thinks proper to exercise it, to sanction the
summoning of other witnesses than those named in the list delivered to the
committing Magistrate. In re the Rajah of Kantit, I. L. P.., 8 All., 668
. (1886).
Refusal of n A Magistrate is not at liberty to refuse to summon a witness tendered
Magistrate to by an accused person, except on the ground specified in section 359 of the
summon pri
soner's wit- Code of Criminal Procedure, 1872; and if he does refuse, he is bound to proceed
under that section The fact that accused declines to examine a witness is
no reason for refusing to summon him to meet fresh evidence given subse
quent to the defence being closed. In re Delia Mahton v. Sheo Dual Keori,
I. L. R., 6 Cal., 714 (1881).
Witness for the On the 30th March, 1881, an accused person on his trial before a
defence—Fail- Magistrate asked that a certain witness might he summoned on his behalf.
RefusalBttonlro- The Magistrate ordered a summons to be issued for the attendance of such
summon. witness on the 18th April, to which day the further hearing of the case was
adjourned. There was some delay in the service of the summons and such wit
ness did not attend on that day. The Magistrate refused an application by the
accused for the issue of a second summons to such witness with reference
to section 239 of the Code of Criminal Procedure, 1872, on the ground
that such application was not made in " good faith. " Held, that the
provisions of section 359 of the Code were clearly inapplicable to the case
as it stood before the Magistrate on the 18th April, and he was bound to
Ss. 217-218] Proceedings in Prosecutions. 30 i
make a further attempt—the first attempt seemed to have been nomint.1
merely—to secure the attendance of the absent witness. Empress of India v.
Rukn-ud-din, I. L. B., 4 All., 53 (1881).
On the 8th October, the accused, who were the servants of fl, found Eiamitiation of
the men in the employ of A were putting up a nawbut-khana and accordingly witnesses for
protested against its erection, pulled down the bamboos, thrust aside the ocnce-
servants of A, throwing to the ground one man who was clinging to the
bamboos. On the 9th October, 1877, these servants were charged before
the Magistrate with rioting, and being called upon their defence, named sever
al witnesses, and summonses on the following morning were issued for their
appearence, bat they were not found. The accused then applied for further
time for the appearcnec of witnesses. This the Magistrate refused to grant,
and convicted the accused on 12th October, 1877. IleU j>er Jackson, J., that
this being a warrant case it was the duty of the Magistrate to summon the
witnesses that might be offered by the accused, and that he might at his dis
cretion have adjourned the case. The Empress v. Rajcooimir Singh, I. L. K.,
3CaI.,573 (1878).
217. (1) Complainants and witnesses for the prosecution {^".untsTnd
and defence, whose attendance before the Court of Sess'on or witnesses.
High Court is necessary and who appears before the Magistrate,
shall execute before him bonds binding themselves to be in atten
dance when called upon at the Court of Session or High Court
to prosecute or to give evidence, as the case may be.
(<?) If any complainant or witness refuses to attend before SjJSdjMim'cMa

the Court of Sessi >n or High Court, or execute the b >nd above °cnd''o^tVcio"
directed, the Magistrate may detain him in custody until lie execute bond. 1
cutes such bond, or until his attendance at the Court of Session
or High Court is reqnired, when the Magistrate sb ill send him in
enstodv to the Court of Session or High Court, as the case may
be.
218. (1) When the accused is committed for trial, the Cumuiitnwut
Magistrate shall issue an order to such person as may be appoin- *^,en t0 bo not1'
ted by the Local Government in this behalf, notifying the commit
ment, and stating the offence in the same form as tb« charge, un
less the Magistrate is satisfied that such person is already aware of
the commitment and the form of the charge ;
and shall send the charge, the record of the inquiry and any charge, etc.. to
weapon or other thing which is to be produced in evidence, to the hwT Courf 0?
Court of Session or ;where the commitment is made to the Hio-h Jj°"rt of 6ev
Court) to the Clerk of the Crown or other officer appointed in this
behalf by the High Court.
(2) "When the commitment is made to the High Court and 5!*u? l^"f^'.
any part of the record is not in English, an English translation of warded to High
such part shall be forwarded with the record. Uourt-
For form uj notice oj commitment by Magistrate to
ment Pleader, tee schedule V, No. 27.
302 Proceedings in Prosecutions. [Ch. XIX.
Power to sum- 219. (1) The Magistrate may, if he thinks fit, summon and
mentary wit- examine supplementary witnesses after the commitment and be-
ne«ses. fore j.jjg commencement of the trial, and bind thein over in man
ner hereinbefore provided to appear and give evidence.
(2) Such examination shall, if possible, be taken in the pre
sence of the accused, and, where the Magistrate is not a Presiden
cy Magistrate, a copy of the evidence of such witnesses shall, if the
accused so require, be given to him free of cost.
Custody of ac- 220. Until and during the trial, the Magistrate shall, sub-
trial!1 pending ject to the provisions of this Code regarding the tiking of bail,
commit the accused, by warrant, to custody.
CHAPTER XIX.
Of the Charge.
Form of Charges.
charge to state 221» [1) Every charge under this Code shall state the
offence. offence with which the accused is charged.
specific name of (2) If the law which creates the offence gives it any specific
cient desorip- name, the offence may be described in the charge by that name
tion- only.
where'oflenoe ^) ^ *ne 'aw wni°h creates the offence does not give it any
haa no specific specific name, so much of the definition of the offence must be
nam<" stated as to give the accused notice of the matter with which he is
charged.
(4) The law and section of the law against which the offence
is said to have been committed shall be mentioned in the charge.
what implied The fact that the charge is made is equivalent to a state-
in charge. ment that every legal condition required by law to constitute the
offence charged was fulfilled in the particular case.
Language of (61) In the presidency-towns the charge shall be written in
charge. English ; elsewhere it shall be written either in English or in the
language of the Court.
Previous con- (7) If the accused has been previously convicted of any
besetiout.6" 40 offence, and it is intended to prove such previous conviction for
the purpose of affecting the punishment which the Court is com
petent to award, the fact, date and place of the previous conviction
shall be stxted in the charge. If such statement is omitted, the
Court may add it at any time before sentence is passed.
Illustration*.
(a) A is charged with the murder of B. This is equivalent to a
statement that A's act fell within the definition of murder given in
sections 299 and 800 of the Indian Penal Code ; that it did not fall
within any of the general exceptions of the same Code ; and that it did
not fall within any of the five exceptions to section 300, or that, if it did
fall within Exception I, one or other of the three provisoes to that excep
tion applied to it.
(A) A is charged, under section 826 of the Indian Penal Code,
with voluntarily causing grievous hurt to B by means of an instrument
for shooting. This is equivalent to a statement that the case was not
provided for by section 335 of the Indian Penal Code, and that the ge
neral exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or
criminal intimidation, or using a false property-mark. The charge may
state that A committed murder, or cheating, or theft, or extortion, or
adultery, or criminal intimidation, or that he used a false property-mark,
without reference to the definitions of those crimes contained in the
Indian Penal Code ; but the sections under which the offence is punish
able must, in each instance, be referred to in the charge.
(<1) A is charged, under section 184 of the Indian Penal Code,
with intentionally obstructing a sale of property offered for sale by the
lawfnl authority of a public servant. The charge should be in those
words.
For jorms of charges, see schedule V, No. 28.
[105 (Evidence Act). When a person is accused of any offence, [Bunion of
the burden of proving the existence of circumstances bringing the case oueof**ocnied
within nny of the general exceptions in the Indian Penal Code, or with- come* withi"
in any special exception or proviso contained in any other part of the elceptl0"'
same Code, or in any law defining the offence, is upon him, and the
Court shall presume the absence of such circumstances.
Illustrations.
(a) J, accused of murder, alleges that, by reason of unsoundness
of mind, he did not know the nature of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges that by grave and sudden pro
vocation, he was deprived of the power of self-control.
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code provides that whoever,
except in the case provided for by section 335, voluntarily causes griev
ous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section
825.
304 Proceedings in Frosecutions [Chap. XIX.
The burden of proving the circumstances bringing the case under

section 385 lies on A.~\
Lurking house- A conviction for lurking house-trespass by night under section 45G of the
trespass by Penal Code is not bad for the want of the specification of the intention in
night—Inten
tion -Specifica the charge, but one under section 457 cannot be sustained without such speci
tion of inten fication. In a charge under the former section, though a guilty intention
tion in chaiye. must be proved, it is not necessary to prove which of the several guilty
intentions the accused had; it will be enough if it be shown that the intention
must have been one or other of those specified in section 441, though it may
not be certain which it was. An accused person, the landlord of the house
in which he occupied the lower flat, was found in the middle of the night in
the room of the complainant, one of his tenants, upstairs, in which the com
plainant and his wife were at the time sleeping. Upon being detected the
accused was subjected to very severe treatment, but did not utter a word of
protestation of innocence, or made any show of remonstrance, and when ques
tioned, said: " 1 have committed a fault, pardon mo. " He was arrested
upon a charge under section 456 of the Penal Code, the criminal intention
alleged being that of committing theft. The charge framed by the Magistrate
did not specify any intention, and the Magistrate came to the conclusion
that the trespass was not committed by the accused, who was a wealthy man,
with that intention. He found, however, that the complainant had sup
pressed some important facts, and that he was not in his wife's room when the
accused entered it, and relying on the decision in Koilnth Chundri Chakrabarty
v. The Queen-Empress (I. L. R., 16 Cal., 657), he convicted the accused. On
appeal the Sessions Judge, though finding that the Magistrate's views were
against the evidence, upheld the conviction without finding what specifically
was the intention with which the entry was made. In revision it was con
tended that the conviction was bad—(1) because no guilty intention was set
out in the charge ; (2) because no such intention was prove! by the evidence :
and (3) because no such intention was specifically found by the Sessions Judge.
HM, that the first contention was unsupportable for the reasons above stated.
Even if it had been necessary to specify the intention in the charge, it would
have been shown under the provisions of section 537, Act X of 1882, that the
omission had occasioned a failure of justice and having regard to the na
ture of the charge and the line of defence adopted, the accused had not in any
way been prejudiced in his defence. Held, as regards the second contention,
that though it was not certain what the precise intention of the accused was
in committing the trespass, it was clear that it must hive been with one or
other of the intentions specified in sections 441 of the Penal Code, as, judg
ing from the time, the place, and manner in which the trespass was com
mitted, and the conduct of the accused when discovered, it was impossible
to suppose that the trespass could have been committed either unintention
ally or with any innocont intention, and that it must have been committed
with the intention of committing some offence, but that the accused was
entitled to have it taken that it was with the best possible culpable intention,
namely, that of committing an offence under section 509 of the Penal Code.
Held, as regards the third contention, that in exercising its powers under sec
tion 439, Act X of 18H2, it is open to the High Court to alter any finding and
confirm a conviction, and that if the evidence on the record in a case be suffi
cient to warrant a conviction, the Court would not be justified in setting such
conviction aside, merely, because the view taken of the evidence by the
lower Court is not sustainable, or some fact which ought to have been found
by that Court is not found, or found incorrectlv. Balmakawl Ram v. Ghansan
Ram, I. L. P.., 22 Cal., 391 (1894).
Offence under If a prisoner is to be tried for an offence punishable under section 75 of
Chapter XII or the Indian Penal Code, a separate charge under that section must be framed
XVII after pre
vious convic and recorded. Qiiem-Etopress v. Dorasami, I. L. R., 9 Mad., 284 (1886).
tion.
S. 222.] Poceedings in Prosecutions. 305
Held, that on a trial upon charges under sections 467 and 471 of the Charge—Add i-
Penal Code, the Court had power, under section 227 of the Criminal Procedure ^"trW-Alter?
Code, 1882, to add a charge under section 193 of the Penal Code, upon which ingcharge.
the prisoner had not heen committed for trial. Queen-Empress v. Gordon,
I. L. R., 9 AIL, 525 (1886).
An accused is entitled to know with certainty and accuracy the exact C1,"je—Ac-
nature of the charge brought against him, and unless he has this knowledge, Jj£ know"exact
he must be seriously prejudiced in his defence. This is true in all cases, but natureof charge
it is more especially true in cases where it is sought to implicate him for acts jjj"^0 "R""181
not committed by himself, but by others with whom he was in company.
Behari Mahton v. Queen-Empress, I. L. R., 11 Cal., 106 (1884).
The fact of previous convictions should, under Act X of 1872, section Previous convic-
439, be stated in the charge, when it is intended to prove them for the purpose tion-Cbarge.
of enhancing punishment. The question of proof of previous conviction is
one of facl which ought to go to the jury, and must be determined by a jury
The Queen v. Emn Chunder Dey, 21 W. R., 40 (1874).
Under section 439 of the Criminal Procedure Code, 1872, if it is intend- Previous convic-
od to prove a previous conviction against an accused person for the pur- tio" ch,r*e-
pose of enhancing the punishment, it is necessary to state the fact of that
previous punishment in the charge. If it is omitted, it may be added to the
charge at any time previous to the sentence being passe I, but not after.
The Queen v. Rajcoomar Bose, 19 W. R., 41 (1873).
222. (7) The charge shall contain such particulars as to Particulars as
the time and place of the alleged offence, and the person (if any) a0ndti^r»n5!ace'
against whom, or the thing (if any) in respect of which, it was
committed, as are reasonably sufficient to give the accused notice
of the matter with which he is charged.
(2) When the accused is charged with criminal breach of
trust or dishonest misappropriation of money, it shall be sufficient
to specify the gross sum in respect of which the offence is alleged
to have been committed, and the dites between which the offence
is alleged to have been committed, without specifying particular
items or exact dates, and the charge so framed shall be deemed to
be a charge of one offence within the meaning of section 234 :
Provided that the time included between the first and last of
such dates shall not exceed one year.
For forms of charges, see schedule V, No. 28.
If, in any case, either the accused, are likely to be bewildered in their de- Joinder of
fence by havtng to meet many disconnected charges, or the prospect of a fair '^^"(^miiiit-
trial is likely to be endangered by the production of a mass of evidence direct ted by different
ed to many different matters and tending by its mere accumulation to induce accused against
an undue suspicion against the accused, then the propriety of combining the gonsTt different
charges may well l>e questioned. A committing Magistrate is bound under times—Joint
sections 222 and 223 of the Code of Criminal Procedure, 1882, to insert in the trial-Charge,
heads of charge sufficient particulars of time, place, person, and circumstance
as will give each of the prisoners notice of the matter with which ho is charg
ed. The four accused, who were members of the Darwar Police Force,
were charged with ill-treating the complainant Llanma, his wife Rakhma, and
his son in-law Yellia during the course of a police investigation into a case of
theft. They were committed for trial for the following offences:—(1). All
20
306 Proceedings in Prosecutions. [Chap. XIX,
the accused for an offence under section 330, Indian Penal Code, the charge
covering several acts of violence alleged to have been committed against
Hanma during his confinement, which formed the subject of the second head
of the charge. (2). All the accused for an offence under section 348, Indian
Penal Code, committed against Hanma between the 5th and the 18th Jannary,
1889. (3). Accused Nos. 1 and 3 for an offence under section 348, Indian
Penal Code, committed against Rakhma on the loth January, 1880. (4). Ac
cused No. 3 for an offence under section 330, Indian Penal Code, committed
against Rakhma on the 14th January, 18811. (5). All the accused for an
offence under section 330, Indian Penal Code, committed against Yellia bet
ween the 15th and 23rd January, 188it. (6). All the accused for an offence
under section 348 committed against Yellia during the same period. (7).
Accused Nos. 1, 2 and 3 for an offence under section 346, Indian Penal Code,
committed against Yellia between 8th February and 9th March, 1889. The
accused were committed to the Court of Session in two separate cases. The
Sessions Judge tried both cases together under sections 235 and 239 of the
Code, as the same four persons were accused in both cases and "were charged
with different offences committed in what was virtually one transaction,
namely, a police investigation into an alleged theft." The accused were con
victed of the offences charged, and sentenced to various terms of imprison
ment. Held, reversing the convictions and sentences, that the combination
of the two cases necessarily prejudiced the accused by making it possible for
the prosecution to bring forward a mass of evidence at the trial relating to
many matters, some only remotely connected with relevant questions which
must to some extent have had the effect of embarrassing and confusing the
accused. Held, also, that all the several acts of violence alleged to have been
committed against Hanma during his illegal confinement could be rightly
regarded as constituting a single transaction. But the act of violence said
to have been committed against Rakhma at a different place could not be
regarded as a part of that transaction. Nor was the wrongful confinement
of Rakhma by accused Nos. 1 and 3 on the 15th January a part of the trans
action constituted by the hurt caused to her by accused No. 3 on the previous
day. In the same all acts of hurt caused to Yellia during his first period
of wrongful confinement would with the confinement form a part of the same
transaction ; but the second period of confinement, which is said to have
commenced some time after the termination of the first period of confinement,
would be a separate transaction. Queen-Empress v. Fakirapa, 1. L. R., 15
Bom., 491 (1890).
Accused entitled An accused is entitled to know with certainty and accuracy the exact
to know exaot nature of the charge brought against him, and unless he has this knowledge,
nature of charge ]ie mU8t De seriously prejudiced in his defince. This is true in all cases, but
made again* jt js nlore specially true in cases where it is sought to implicate him for acts
not committed by himself, but by others with whom he was in company.
Behari Mahton v. Queen-Empress, I L. R., 11 Cab, 106 U884).
Unnatural Held, where a person was tried for an unnatural offence, and convicted
offence— on a charge which did not allege the time when, place where, or point to any
Particulars as known or unknown person with whom, the offence was committed, and with-
to time, place, out any proof of these particulars, the facts proved against him only being
and person. tliat he habitually wore woman's clothes ami exhibited physical signs of having
committed the offence, that the conviction was not sustainable. Queen- Empress
v Khairati, I. L R, 6 All., 204 (1884).
When manner 223. When the nature of the case is such that the particulars
of ^^"L mentioned in sections 221 and 222 do not give the accused snffi-
offence
mce must Be , . , ,° , ,i i i„n
•tated. cient notice of the matter with which he is ch irged, the charge shall
also contain such particulars of the manner in which the alleged
offence was committed as will be sufficient for that purpose.
Ss. 223-225,] Proceedings in Prosecutions* 307
Illustration*.
(a) A is accused of the theft of a certain article at a certain time
and place. The charge need not set out the manner in which the theft
was effected.
(b) A is accused of cheating 2? at a given time and place. The
charge must set out the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place.
The charge must set out that portion of the evidence given by A which
is alleged to be false.
(rf) A is accused of obstructing B, a public servant, in the dis
charge of his public functions at a given time and place. The charge
must set out the manner in which A. obstructed B in the discharge of
his functions.
(e) A is accused of the murder of B at a given time and place. The
charge need not state the manner in which A murdered B.
(/) A is accused of disobeying a direction of the law with intent to
save B from punishment. The charge must set out the disobedience
charged and the law infringed.
For forms oj charge*, see schedule V, No. 28.
224. In every charge words used in describing an offence Wordi in charge
shall be deemed to have been used in the sense attached to them of law'under"
respectively by the law under which such offence is punishable. ^nabfe?"
225. No error in stating either the offence or the particulars Effect of errort.
required t> be stated in the charge, and no omission t > state the
offence or th:>se particulars, shall be regarded at any stage of the
case as material, unless the accused was in fact misled by such
error or omission, and it has occasioned a failure of justice.
Illustrations.
(a) A is charged, under section 242 of the Indian Penal Code, with
" having been in possession of counterfeit coin, having known at the
time when he became possessed thereof that such coin was counterfeit,"
the word " fraudulently " being omitted in the charge. Unless it ap
pears that A was in fact misled by this omission, the error shall not be-
regarded as material.
(6) A is charged with cheating B, and the manner in whicli he
cheated B is not set out in the charge, or is set out incorrectly. A de
fends himself, calls witnesses, and gives his own account of the transac
tion. The Court may infer from this that the omission to set out the
manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he
cheated B is not set out in the charge. There were many transactions
308 Proceedings in Prosecutions. [Chap. XIX.
between A and B, and A had no means of knowing to which of them

the charge referred, and offered no defence. The Court may infer from
such facts that the omission to set out the manner of the cheating was,
in this case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st
Jannary, 1882. In fact, the murdered person's name was Haidar
Baksh, and the date of the murder was the 20th January, 1882. A
was never charged with any murder but one, and had heard the enquiry,
before the Magistrate, which referred exclusively to the case of Haidar
Baksh. The Court may infer from these facts that A was not misled,
and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th
January, 1882, and Khoda Baksh (who tried to arrest him for that
murder) on the 21st January, 1882. When charged for the murder of
Haidar Baksh, he was tried for the murder of Khoda Baksh. The
witnesses present in his defence were witnesses in the case of Haidar
Baksh. The Court may infer from this that A was misled and that
the error was material.
Krror in charge Before a conviction can properly be maintained for the offence of rioting,
>lli!â<'iDp; ac' >t 's necessary that there should be a clear finding as to the common object of
' ">" the unlawful assembly, and also that the common object so found should have
been stated in the charge in order that the accused person might have an op
portunity of meeting it. Where a Sessions Judge in his charge to the jury
referred to two possible common objects of an unlawful assembly, one of
■which only had been set out in the charge sheet : Held, that, inasmuch as it
was impossible to say which of the two common objects had been accepted by
the jury, and it might well have been that they had accepted the one which
had not been charged, and which consequently the accused had not had an
opportunity of meeting, the conviction must be set aside. If one member of
an unlawful assembly is armed with a deadly weapon, the other members can
not on that account be charged under section 148 of the Penal Code. It is
only the actual person so armed who can be charged under that section. Sabir
v. Queen-Empress, I. L. B., 22 Cal., 27"3 (1894).
Meaning of the A was tried on a charge (1) of murder, (2) of abetting D to coiu-
word "charre ' tnit the said murder The jury, having considered their verdict, were
J'rocedureCodc. asked by the Clerk of the Crown if they wore agree 1. The foreman re-
188:—Addition plied that they were, and that their verdict was guilty, aud when further
trial-IBtcHne asked, he said " guilty of abetment —of abetment generally." On the ap-
chanre—Substi- plication of counsel for the prosecution, a charge was then added of
tution of charice " abetment of murder committed by some person or persons unknown."
iwiTariTeV'0 The additional charge was read aloud to the jury, but was not specially
plain chance to explained to the prisoner, nor was he called upon to plead to it. Coun-
sonSc"mtnlued 8e' *or tne Pri80ner was asked by the Judge if he desired to have a
'• without ii new trial on the charge as amended, but he declined. The three charges
chance"—Mean- e < the two original charges and the additional charge) were then read
•'aHer"-M*a°ind- to the jury, who, after deliberation, returned a verdict of " not guilty"
init of the words on charges Nos. 1 and 2, and of ''guilty" on charge No. 3, vis., of
iirct^-Court'of abetment of murder by a certain person or persons unknown. On the
and application of counsel for the prisoner, the following points were reserved : —
revision—I'rnc- (i) Whether, under the circumstances, the Court had power to add a
—aightr°tobe™ new charge ; (2) whether the verdict returned on the new charge was valid,
prin. the prisoner not having been called upon to plead to it. Held, (Scott, J.,
dissenticnte) that the Judge was wrong in framing a new charge in addi
tion to the original charges. The error, however, was one of form and
not of substance, and under section 537 of the Code of Criminal Pro
cedure, 1882, the Court declined to interfere with the conviction. Held,
also, that the power exercised by a Court sitting as a Court to decide questions
of law reserved in criminal cases under section 434 of the Code is the power
to review, and the Court is a Court of Reference and Revision. Held,
also, that, having regard to sections 228, 229, and 230 of the Code, the
charge of abetment of murder by B might have been changed iuto one
of abetment generally. Held, also, that, in any case, the conviction was
good under sections 236 and 237 of the Code. It was doubtful whether
the evidence would establish the offence of murder, abetment of murder
by B, or abetment of murder by some one unknown. Even if there
had been no charge properly framed, the Judge might, under section 237,
have accepted the verdict returned by the jury, and entered it on the
record. The fact that the Judge framed a charge which, exhypothesi,
was beyond his authority, and accepted a verdict on that charge, did
not affect the legality of the conviction. Held, that the omission to read and
explain the charge to the prisoner did not under the circumstances pre
judice the prisoner, and was, therefore, immaterial. In the Code of Cri
minal Procedure generally the word " charge " is used as the statement
of a specific offence, and not as indicating the entire series of offences of
which a prisoner is accused. There is nothing in the Code to indicate
that the word is to have a different construction in sections 226 and 227 from
what it has in other sections. The words " without charge," in section
226 of the Code, will probably apply, not only. to a case in which there
is no charge at all, but also to a case in which there is no charge of
such an offence as the Sessions Judge or Clerk of the Crown may think
the prisoner ought to be tried for. If the word " alter" in section 227
is to be taken to include " addition," as it does in section 226, the addi
tion permitted must be an addition to some specific charge in the nature
of an alteration, and not the addition of a new charge. The words "return
of the verdict " in section 227 mean the return of the final verdict which the
Judge is bounil to record. Where, on application of counsel for the prisoner,
a question of law has been reserved for the decision of the Court under sec
tion 434 of the Code, the prisoner's counsel has the right to begin. Per Scott,
J.—The test of the admissibility of proposed amendments to a charge
is whether such amendment will prejudice the prisoner. The word " charge"
is used in the Code, both as indicating the whole series of counts or heads of
charge, and also as indicating a charge of one specific offence. In sec
tion 227 it is used in the former sense. The word " alter " in section
227 must be taken to be equivalent to the «ords " add to or otherwise alter,"
which are used in section 226, and consequently the addition of a new " head
of charge" is an alteration within the meaning of section 227. Queen-
Empress v. Appa Subhanu Mendre, I. L. R., 8 Bom., 200 (1884).
Having regard to sections 225 and 537 of the Code of Criminal Procedure Ch""*6> »> in'W°
nlter-
1882, the accused, convicted upon an alternative charge, must be
oe held
ueia dUlerentot two
defend and .um*»tU
to have been misled in his defence, vuorgo,
ht. conviction
his
must
:_JiJ and . sentence different
°JJ.®n5Tfferentr
reversed. Queen-Empress v. Ramji Sajabarao, I. L. R., 10 Bom., 124 sections of Penal
(1885). Code.
The accused was charged under section 217 of the Penal Code ; but the Vimuoness in
charge did not distinctly state what the direction of the law was which he cuarKe-
disobeyed, and how he disobeyed it. Held, that when accused has been con
victed on a charge expressed in vague terms, the prosecution on appeal
should be limited to the particular sense in which the charge has been under
stood at the trial. ImperatrU v. Babun Khan, I. L. R., 2 Bom., 142 (1877).
226. Whou any person is committed for trial without a Procedure ou
charge, or with an imperfect or erroneous charge, the Court, or, ^"houtôhame
in the case of a High Court, the Clerk of the Crown, may frame a h0tWohSr^pw"
charge, or add to or otherwise alter the charge, as the case may be,
having regard to the rules contained in this Code as to the form
of charges.
Illustrations.
1. A is charged with the murder of C. A charge of abetting the

murder of C may be added or substituted.
2. A is charged with forging a valuable security under section

467 of the Indian Penal Code. A charge of fabricating false evidence
under section 193 may be added.
3. A is charged with receiving stolen property knowing it to be

stolen. During the trial it incidentally appears that he has in his
possession instruments for the purpose of counterfeiting coin. A charge
under section 235 of the Indian Penal Code cannot be added.
Charge—Altera- At the commencement of a trial before a Court of Session on a charge

Addit'onhaote~ U11('er section 200 of the Indian Penal Code, the public prosecutor applied to
chargea— the Court to frame new heads of charge under sections 423 and 424 of the
orSer ofr°m *n ôc'e- ^'le Sessions Judge postponed passing any final decision upon this
quittal. SC" application, until it became apparent that the charge under section 206 was not
sustainable on the evidence to be adduced by the prosecution. After hearing
the evidence for the prosecution on this charge, the Sessions Judge, without
going into the defence, or recording the opinions of the assessors, passed an
order of acquittal. At the same time he rejected the application for framing
new heads of charge, holding, on the authority of Queen-Empress v. Appa, that
he had no power to frame any new charges in addition to the original charge.
He was also of opinion that the dismissal of complaint which the prosecutor
had previously filed against the accused on the very charges which were
sought to be added, was also a sufficient ground for rejecting the application.
The Local Government appealed to the High Court against the order of
acquittal. At the hearing of the appeal it was contended on behalf of the
Crown that the Sessions Judge was wrong in refusing to frame additional
charges as sought by the public prosecutor. The accused's counsel objected
to this point being raised by Government in an appeal against an order of
acquittal. Held, per Tei.axg, J., (1) that under section 417 of the Code of
Criminal Procedure, 1882, it was not open to Government to appeal to the
High Court on the ground of the Sessions Judge's refusal to add new charges,
or against any other interlocutory order made during the trial. (2) That the
Sessions Judge ought to have finally disposed of the application for framing
additional charges at the very commencement of the trial when it was made,
especially because it did not purport to be based on any facts other than those
contained in the depositions recorded by the committing Magistrate. Qtteen-
Empress v. Vajiram, I. L. 1!., lti Bom., 414 (1892).
The accused was charged under section 217 of the Penal Code ; but the
Imperfect charge did not distinctly state what the direction of the law was which he dis
obeyed, and how he disobeyed it. Held, that when accused has been convict
ed on a charge expressed in vague terms, the prosecution in appeal should be
limited to the particular sense in which the charge has been understood at
the trial. Jmperatrix v. Baban Khan, I. L. B., 2 Bow., 142 (1887).
Subject to the other provisions of the Code of Criminal Procedure, 1882, Addition of
section 28 gives power to the High Court and the Court of Session to try any jJ^JJL m^1!
offence under the Penal Co le ; and the provision it contains as to the other trate—Power of
Courts does not cut down or limit the jurisdiction of the High Court or the *S8si?58 ^dg*
Court of Session. Three persons were jointly committed for trial before and'try it?"8*
the Court of Session, two of them being charged with culpable homicide not
amounting to murder of J, and the third with abetment of that offence. At
the trial, the Sessions Judge added a charge against all the accused of caus
ing hurt to C, and convicted them upon both the original charges and the
added charge. The assault upon C took place either at the same time as, or
immediately after, the attack which resulted in the death of J. Held, that the
case did not come within the terms of section 226 of the Code, and the add
ing of the charge was an irregularity which was not covered by sections 236
and 237, those sections having no application to such a state of things ; but
that, inasmuch as the Sessions Judge was addressed by the pleader who
appeared for the accused, and heard all the objections raised, and witnesses
might have been called for the defence upon the added charge, the provisions
of section 537 were applicable to the case. Held, also, that the Sessions Judge
had power, under section 28 of the Code, to try the charge, assuming that he
had power to add it. Queen-Empress v. Kharya, I. L. U., 8 All., 665 (1880).
In the Code of Criminal Procedure, 1882, generally the word " charge " ".Without
is used as the statement of a specific offence and not as indicating the entire charge"—
series of offences of which a prisoner is accused. There is nothing in the ^vci" alter." *
Code to indicate that the word is to have a different construction in sections
226 and 227 from what it has in other sections. The words " without
charge," in section 226, will probably apply, not only to a case in which
there is no charge at all, hut also to a case in which there is no charge of such
an offence as the Sessions Judge or Clerk of the Crown may think the prisoner
ought to be tried for. If the word " alter " in section 227 is to be taken to
include " addition " as it does in section 226, the addition permitted must be
an addition to some specific charge in the nature of an alteration, and not the
addition of a new charge Queen- Empress v. Ap/Mi Subhana Alendre, I. L
R., 8 Bom., 200 (1884).
The prisoner was committed for trial on fifty-five charges, including Separate triali—
three charges, under sections 167, 466, and 471 of the Penal Code. At the Olfences of the
trial before the District Judge sitting with assessors, the Court informed the Jmendment1 qx
prisoner that the trial would be confined to the three charges last mentioned, charge.
The prisoner was convicted on these, but the Court allowed the evidence to
be adduced by the prosecution on all the remaining charges, and in respect of
these the prisoner was acquitted. Held, that the District Judge should have
exercised the powers conferred on him by sections 445 and 446 of the Code
of Criminal Procedure, 1872, and then have proceeded to hold separate trials ;
that he should not have tried together the charges under sections 167 and 466
of the Penal Code, as the offences were not of the same kind within the
meaning of section 453 of the Code : but the convictions on these charges
were upheld, as it did not appear that tho prisoner had been prejudiced by
the mode of trial adopted. The Empress v. Sreenuth Rur. I. L. R., 8 Cal.,
450 .1 882)
R having been committed by a Magistrate for trial by a Sessions Court Conviction up
on a charge under section 202 of the Penal Code, of having intentionally o}'d?8ttnctharB°
omitted to give information which he was legally bound to give respecting offence not
a murder, pleaded guilty, on his trial, to the charge on which he was commit- •upported by
ted. Upon the application of the Public Prosecutor, the Sessions Judge, un- SE^rete?'0"
der proles' on the part of the prisoner, added a charge, under sections 109 and
201 of tho Penal Code, of abetting C, a female co-prisoner charged
with having assisted in burying the body of the murdered person, required
R to plead to the charge, and having tendered a pardon to and examined
C as a witness, convicted and sentenced R to two years' rigorous imprison
ment. Held, that, as there was no evidence before the Magistrate to support
the charge against R, framod by the Sessions Judge the action of the Judge
was ultra vires and the conviction on the added charge illegal. He'd, also, in
asmuch as the Sessions Judge considered R more culp.ible than C, the proper
course would have been to have adjourned the trial, sent the record to the Ma
gistrate, and suggested an enquiry as to whether there was ground for a more
serious charge against //. Seinble.—The object of restricting a Sessions Court
from taking cognizance of any offence (except as provided in sections 455, 472,
and 474 of the Code), unless the accused person has been committed by a Ma
gistrate, is to secure to the prisoner a preliminary enquiry, which affords him
an opportunity of becoming acquainted with the circumstances of the offence
imputed to him, and enables him to make his defence. Mutirakal Kocila-
(jatha Rama Varma Raja v. The Queen, I. L. R., 3 Mad., 351 (1881).
Procedure— Where an accused person is committed to take his trial on specific charges
Chaise framed before the Sessions Court, the Judge has no power, under section 44G of the
bv committing Qocle of Criminal Procedure, 1872, to expunge a charge before calling upon
Irregularity the accused to plead to it. Empress v. Poreshollah Sheikh, 7 Cal. L. 6,, 143
(1680).
court may alter (1) Any Court may alter or add to any charge at any
charge. time before judgment is pronounced, or, in the case of trials be
fore the Court of Session or High Court, before the verdict of the
jury is returned or the opinions of the assessors are expressed.
(2) Every such alteration or addition shall be read and ex

plained to the accused.
Power of Ses- ^'ie wor(* " a'ter " »"> section 227 of the Code of Criminal Procedure,
sions Judge 1882, includes withdrawal by a Sessions Judge of a charge added by him to
to withdraw a the charge on which the commitment has been made. Dmarka Lai v. Mahadeo
charge framed ^ j £ R _ ,2 ^ m
Addition of Held, that on a trial upon charges under sections 467 and 471 of the
charge at trial Penal Code, the Court "bad power, under section 227 of the Code of Criminal
charge!™* Procedure, 1882, to add a charge under section 193 of the Penal Code, upon
which the prisoner had not been committed for trial. Queen-Empress v.
Gordon, I. L. R., 9 All., 525 (1886).
«™th In the Code of Criminal Procedure,* 1882, generally the word "charge"
charge""Mean- *8 u8et' as *ne statement of a specific offence and not as indicating the entire
ing of the word series of offences of which a prisoner is accused. There is nothing in the
i'ng'oTtiie worda ôde to indicate that the word is to have a different construction in sections
"return of ver. 226 and 227 from what it has in other sections. The words " without charge "
•Met." in section 226 of the Code will probably apply, not only to a case in which
there is no charge at all, but also to a ease in which there is no charge of
such an offence as the Sessions Judge or Clerk of the Crown may think the
prisoner ought to be tried for. If the word " alter " in section 227 is to be
taken to include " addition," as it does in section 226, the addition permitted
must be an addition to some specific charge in the nature of an alteration, and
not the addition of a new charge. The words " return of the verdict " in
section 227 mean the return of the final verdict which the Judge is bound
to record. Queen-Empress v. Appa Subhana Mendre, I. L. R.. 8 Bom., 200
(1884).
Ss. 227-231.] I rocceditigs in Prosecutions. 313
On a trial by ]ury the Sessions Judge has no power to alter the charge Alteration of
after the delivery of the verdict. Reg. v. Shek Alt, 5 Bom. H. C.. 9 chaive alter
(1868). ' ' verdict.
2 28. If the charge framed or alteration or addition made Jrê^r^™tiy

under section 226 or section 227 is such that proceeding immedi- diateiy after °"
ately with the trial is not likely, in the opinion of the Court, aUeraHon-
to prejudice the accused in his defence or the prosecutor in the
conduct of the case, the Court may, in its discretion, after such
charge or alteration or addition has been framed or made, proceed
with the trial as if the new or altered charge had been the origi
nal charge.
While A and B were being jointly tried before a Court of Session, the Amendment of
first for murder, and the second for abetment of murder, a confession made by ctarw—pontes-
A that he himself had committed the murder at the instigation of B, was put Jointly triedf
in as evidence against A. Subsequently the charge against A was altered to
one of abetment of murder, and the Sessions Judge, under the authority of
section 30 of the Evidence Act, used the confession against both, and con
victed them. The High Court held that the original and amended charges
were so nearly related that the trial might, without any unfairness, be
deemed to have been a trial on the amended charge from the commencement;
and that no objection having been taken by B. who was represented by a
vakil, to the admissibility of A's confession against him when the charge
against A was altered, the Sessions Judge was justified in using the con
fession against B also. Hen. v. Govind Babli haul, 11 Bom. H. C, 278
(1874).
229. If the new or altered f»r added charge is such that when new trial
proceeding immediately with the trial is likely, in the opinion of orYrial suTJwn^
the Court, to prejudice the accused or the prosecutor as aforesaid, dw1,
the Court may either direct a new trial or adjourn the trial for
such period as may be necessary.
A Magistrate trying a case is as much bound by strict rules of evidence Record of for-
08 any Sessions Judge or Civil Court. Where proceedings, which had alrea- boYorTan-
dy been taken against the accused before another Magistrate had been other Maiti*-
ijuashed and a new trial directed, the Magistrate holding the second trial is trntc.
not justified in referring to the former record as a whole, but only to such
portions of it as have been specially put in evidence before him. In re
Devi Dutt, 7 Cal. L. R., 193 (1880).
230. If the offence stated in the new or altered or added 8taypt proceed-
charge is one for the prosecution of which previous sanction is tiSH "oHal"^
necessary, the case shall not be proceeded with until such sanction chaw^require
is obtained, unless sanction has been already obtained for a prose- P.revio»» «anc-
cution on the same facts as those on which the new or altered ,0"'
charge is founded.
231« Whenever a charge is altered or added to by the Recall of wit-

Court after the commencement of the trial, the prosecutor and the ciTrye aiu'reii
accused shall be allowed to recall or re-summon, and examine
with reference to such alteration or addition, any witness who may-

have been examined, and also to call any further witness whom
the Court may think to be material.
SJfet01 *3*« U) W anv Appellate Court, or the High Court in the
exercise of its powers of revision or of its powers under Chapter
XXVII, is of opinion that any person convicted of an offence was
misled in his defence by the absence of a charge or by an error in
the charge, it shall direct a new trial to be had upon a charge
framed in whatever manner it thinks tit.
(2) If the Court is of opinion that the facts of the case are
such that uo valid charge could be preferred against the accused in
respect of the facts proved it shall quash the conviction.
Illustration.
A is convicted of an offence, under section 196 of the Indian Penal

Code, upon a charge which ouiits to state that he knew the evidence,
which he corruptly used or attempted to use as true or genuine, was
false or fabricated. If the Court thinks it probable that A had such
knowledge, and that he was misled in his defence by the omission from
the charge of the statement that he had it, it shall direct a new trial upon
an amended charge ; but if it appears probable from the proceedings that
A had no such knowledge, it shall quash the conviction.
Charge Aildi- Held, that on a trial upon charges under sections 467 and 471 of the
at0ntria'l—Au"re êna' Code, the Court hud power, under section 227 of the Criminal Proce-
iiiKcharge. <mr Code, to add a charge under sectton 193 of the Penal Code, upon which
the prisoner had not been committed for trial. Queen-Empress v. Gordon,
I. L. R., 9 All., 525 (1886).
Record of tor- A Magistrate trying a case is as much bound by strict rules of evidence
ings fieforo*1" as any Session Judge or Civil Court. Where proceedings, which had already
another Majis- been taken against the accused before another Magistrate had been quashed
trate. and a new trial directed, the Magistrate holding the second trial is not justi
fied in referring to the former record as a whole, hut only to such portions
of it as have been specially put in evidence before him. In re Deri Dutt, 7
Cal. L. R., 193 (1880).
The Indian The accused was charged under section 217 of the Indian Penal Code;
Penal Code^ct but the charge did not distinctly state what the direction of the law was which
section vi7— ' he disobeyed, and how he disobeyed it. Held, that when accused has been con-
Charge—Vague- victed on a charge expressed in vague terms, the prosecution on appeal
K ' should be limited to particular sense in which the charge has been understood
at the trial. Imperatrix v. Babtin Khun Valad Mhaskoji, I. L. R., 2 Bom.,
142 (1877).
Joinder oj Charges.
Separate char- 233* For every distinct offence of which any person is
on?eif"esdist'"ct accused there shall bo a separate charge, and every such charge
shall be tried separately, except in the cases mentioned in sections
234, 235, 236 and 239.
Illustration.
A is accused of a theft on one occasion, and of causing grievous
hurt on another occasion. A must be separately charged and separately
tried for the theft and causing grievous hurt.
In a criminal trial evidence otherwise admissible is not rendered inadmis- Separate often-
sible by the fact that it discloses the commission of an offence other than Jf"^/^',, t|le
that in respect of which the trial is being held. An accused person to whom mme proeed-
a tender of pardon has been made, and who lias given evidence under that in* -Evidence,
pardon against persons who were co-accused with him, should not, if such par- -pa'rdon.'with-
don is withdrawn, be put back into the dock and tried as if he had never re- drawal of-Trial
ceived a tender of pardon, but bis trial should be separate from and subse- ™/doTlmTbeon
quent to that of the persons co-accused with him. Where four accused were withdrawn,
at one and the same trial for offences of murder and robbery committed
in the course of one transaction and for another robbery committed two or
three hours previously and at a place close to the scene of the robbery and
murder : Held that the trial of these separate offences together, though an
error or irregularity within the meaning of section 537 of the Code of
Criminal Procedure, 1882, would not necessarily render the whole trial void.
Queen-Empreat v. Mulua, I. L. R., 14 All., 502 (18112).
If, in any case, either the accused are likely to be bewildered in their de- j0j„derof char-
fence by having to meet many disconnected charges, or the prospect of a fair ses- Offences
trial is likely to be endangered by the production of a mass of evidence direc- d7n"erent^cu»ed
ted to many different matters and tending by its mere accumulation to induce aimitwt dillerent
an undue suspicion against the accuse 1, then the propriety of combining the perU?nJ{J1t dJ?'
charges may well be questioned. A committing Magistrate is bound, under j™int tri"'f—
sections 222 and 223 of the Code of Criminal Procedure, 1882, to insert in the Charge,
heads of charge sufficient particulars of time, place, person and circumstance,
as will give each of the prisoners notice of the matter with which he is charg
ed. The four accused, who were members of the Dhanvar Police Force,
were charged with ill-treating the complainant Hanma, his wife Rakhma, and
his son-in-law Yellia, during the course of a police investgation into a case of
theft. They were committed for trial for the following offences :—(1) All
the accused for an offence under section 330, Indian Penal Code, the charge
covering several acts of violence alleged to have been committed against Han
ma during bis confinement, which formed the subject of the second head of
the charge. (2) All the accused for an offence under section 348, Indian
Penal Code, committed against Hanma between the 5th and the 18th
January, 1889 (3) Accuse ! Nos. 1 and 3 fur an offence under section 348,
Indian Penal Code, committed against Rakhma on the 15th January, 1889.
(4) Accused No. 3 for an offence under section 330, Indian Penal Code, com
mitted against Rakhma on the 14th January, 1889. (5) All the accused for
an offence under section 330, Indian Penal Co le, committed against Yellia be
tween the 15th and 23rd January, 1889. (6) All the accused for an offence
under section 348 committed against Yellia during the same period. (7) Ac
cused Nos. 1,2 and 3 for an offence under section 346, Indian Penal Code, com
mitted against Yellia between 8th February and 9th March, 1889. The accus
ed were committed to the Court of Session in two separate cases The Ses
sions Judge tried both cases together under sections 235 and 239 of the Code of
Criminal Procedure, 1882, as the same four persons were accused in both cases
and " were charged with different offences committed in what was virtually one
transaction, namely, a police investigation into an alleged theft." The accused
were convicted of the offences charged, and sentenced to various terms of
imprisonment. Hel/I, reversing the convictions and sentences, that the combi
nation of the two cases necessarily prejudiced the accused by making it pos
sible for the prosecution to bring forward a mass of evidence at the trial relat
ing to many mutters, some only remotely connected with relevant questions
3i6 Proceedings in Prosecutions. [Chap. XIX.
which must to some extent have had the effect of embarrassing and confusing
the accused. Held, also, that all the several acts of violence alleged to have
been committed against Hannm during his illegal confinement could be rightly
regarded as constituting a single transaction But the act of violence said to
have been committed against Kakhma at a different place could not be regard
ed as a part of that transaction Nor was tho wrongful confinement of Kakhma
by accused Nos. 1 and 3 on the 15th January a part of the transaction
constituted by the hurt caused to her by accused No. 3 on the previous day.
In the same way all acts of hurt caused to Yellia during his first period of
wrongful confinement would with the confiuoment form a part of the same
transaction ; but the second period of confinement, which is said to have com
menced some time after the termination of tho first period of confinement,
would be a separate transaction. Queen-Empress v . Fukirapa, I. L. R., 15
Bom , 491 (1890).
Obtaining n A woman, being a member of the dancing-girl caste, obtained possession
minor for prosti- 0f a minor girl, and employed her for the purpose of prostitution. She sub-
mg-girTâ"!*— sequently obtained in adoption another minor girl from her parents, who be-
Ailoption-Mis- lunged to the same caste. She and the parents of the second girl were charg-
'■hu^pa-Im- ei* to§etl]er "i«ler sections 372 and 373 of the Penal Code. The charges related
material irrcyu- to both girls. Held, (1) that the two charges should not have been tried to-
larity. gether. but the irregularity committed in so try ing them had caused no failure
of justice ; (2) that sections 372 and 373 of the Penal Code may be applicable
in a case where the minor concerned is a meinl>er of the dancing-girl caste.
Per Muttusami Ayyar, J.—It would be no offence if the intention was that
the girl should be brought up as a daughter, and that when she attains her
age, she should be allowed to select either to marry or follow the profession
of her prostitute mother. Queen-Empress v. Eamcmna, I. L. R., 12 Mad.,
273 (1889).
Arrest ot ihiel To support a conviction under section 225 of the Indian Penal Code, it is
—Rescue from not necessary that the custody from which the offender is rescued should be
vateêrson-'" tllat of a P°ficeman : is enough that the custody is one which is authorised
Irregular proce* by law. Held, therefore, that rescue from the custody of a private person
(lure- who had arrested a thief in the act of stealing was an offence A Magistrate
tried A for theft, and B aud C for rescuing A from lawful custody, and con
victed A , B, and C in one trial. A appealed, and B and C appealed separ
ately. No objection was taken in the petitions of appeal to the procedure of
the Magistrate. Held, on revision, that the convictions might stand Queen-
Empress v. Kutti, I. L. R., 11 Mad., 441 (1888).
Separate Five persons were charged with having committed the offence of rioting
chaws for <lis- on the 5th December ; four out of those persons, and one F, were charged with
tinctoftVncef. having committed the offence of criminal trespass on the 9th December.
These two cases were taken up and tried together in one trial, and were decid
ed by one judgment. Held, that the trial was illegal, and tho defect was not
cured by section 537 of the Criminal Procedure Code, 1882. Queen-Empress
v. Lhandi Singh, I. L. R., 14 Cal., 395 (1886).
Alternative
ehargo—Contra- - ■■ The accused was charged," in the alternative,
• byhereby
the trying Magistrate as
dictory Charge follows:—"
state Sajabarao, I, W. W. Drew, Magistrate, first-class, charge you, Rainji
merits- as follows : -That you, on or about the 13th day of October, 1882,
in alternative at Nandarpada, stuted that you had seen Vishnu Vaman and Mahadu Laksh-
offences under man carrying teak-wood from Ciohe Forest to Narayan Ramchandra, range
two different forest officer, and on 14th February, 1885, you stated on oath before the tirst-
nTi'code-Mse class Magistrate at Pen, at the trial of these persons, that you did not see
information to where they had brought the wood from, and thereby committed an offence
public servant punishable under section 182 or section 193 of the Indian Penal Codo and within
Uencef ray cognizance ; and I hereby direct that you, Rainji Sajabarao, be tried by tho
S. 233.I Proceedings in Prosecutions. 317
said Court on tlie same charge." At the trial the accused asserted the truth of
the former of these two statements, and denied having made the other. The
Magistrate was unable to find which of them was false, and convicted the ac
cused, in the alternative, either under section 182 or section 193 of the Indian
Penal Code. Held, that the charge was bad in law, being an alternative
charge in a form forbidden by section 233 of the Criminal Procedure Code,
1882, which directs that, for every distinct offence of which any person is
charged, there shall be a separate charge. Nor could the accused be tried
upon a charge framed in the alternative as in the form given in Schedule V—
XXVIII (4) of the Criminal Procedure Code, 1882. For, upon the facts
alleged, -there was no way of charging him with one distinct offence on the
ground of self-contradiction, lie could not successfully be charged under
section 193 of the Penul Code on contradictory statements, because he only
made one deposition, in which there were no discrepancies ; and similarly, he
could not bo charged under section 182 of the Penal Code, for he only once
gave information to a public servant. Held, also, that, having regard to sec
tions 225, 232, and 537 of the Criminal Procedure Code, 1882, the accused,
convicted upon such a charge, must be held to have been misled in his de
fence, and his conviction and sentence reversed. Queen-Empress v. Ramji
Sajabarao, I L. B., 10 Bom., 124 (1885).
A prisoner was convicted on an alternative charge in the form provided Alternative

by Schedule V—XXVIII, II (4) of the Criminal Procedure Code, 1882, of ±"i£i
having given false evidence, such evidence consisting of contradictory state- evidence,
ments contained in one deposition wdiile he was under cross-examination and
re-examination as a witness in a judicial proceeding. There was no finding
as to which of the contradictory statements was false. Held (Nortnis, J., dis
senting), that section 233 of Criminal Procedure Code did not affect the
matter, and that the conviction was good Semble.—Per Wilson, J.—The
decision in The Queen v. Btdoo Noshyo, though a guide to the discretion
of Courts in framing and dealing with charges, was not intended to, and does
not, affect the law applicable to the matter. Habibullah v. Queen-Empres*.
I. L. P., 10 Cal., 937 (1884).
Where a post-master was accused of having, on three different occasions, Juimlcr of

within a year, dishonestly misappropriated money paid to him bv different cha,^tV°!i«i'iil»-
persons for money-orders : Held, that the offences of wdiich such person was jmrf'comtMttcU
accused being the dishonest misappropriations by a public servant of public in "^l"*1 "f
money (for as soon as they were paid they ceased to be the property of the TOn^"' 1K?r'
remitters), such offences were " of the same kind " within the meaning of
section 234 of the Criminal Procedure Code, and such person might therefore,
under that section, be charged with, and tried at one trial for, all three offen
ces. Qtien-Ev press v. Jualu Prasad, I. L. K., 7 All., 174 (1884).
In a charge under section 193 of the Penal Code, it is not necessary to ^jSajSkSSry
allege which of two contradictory statements upon oath is false, but it is statement—As-
sufficient (unless some satisfactory explanation of the contradiction should be r*-
established) to warrant a conviction of the offence of giving false evidence
to show that an accused person has made one statement upon oath at one
time, and a directly contradictory statement at another. Per Dl'TIIOIT, J.—
Every possible presumption in favour of a reconciliation of the two statements
should be made ; and it must be found that they are absolutely irreconcilable
before a conviction can be had upon the ground that one of them is necessarily
false. The English cases upon this subject arc irrelevant to the interpre
tation of the law of India, since the Indian Legislature has not followed the
law of England in regard to perjury. Queen-Empress v. Ghulet,l,L. R.,
7 All., 44 (1884).
3'8 Proceedings in Prosecutions. [Chap. XIX.
Offencea of A prisoner cannot bo tried at the same trial for receiving or retaining (sec-
diflcrent kinds tion 411, Penal Code), and habitually receiving or dealing in (section 413),
red^'e-Iiyiuc- stolen property. The proper course is to try the accused first for the offen-
tion of punish- ces under section 411, and[if he is convicted, to try him under section 413,
be tonowedTt10 Putt'nff in evidence the previous eonvictiojs under section 411, and proving
trial. the finding of the rest of the property in respect of which no separate charge,
under section 411, could be made or tried by reasons of the provisions of
section 453 of the Criminal Procedure Code, 1872. The Empress v. Uttom
Koonxloo, I. L. II., 8 Cal., 634 (1882).
Separate trials The prisoner was committed for trial on fifty-five charges, including three
the "in cCkiiid— cnarKes "nder sections 16/, 4'i6, and 471 of the Penal Code. At the trial
Amendment of before the District Judge sitting with assessors, the Court informed the
chvgo prisoner that the trial would be confined to three charges last mentioned. The
prisoner was convicted on these, but the Court allowed evidence to be adduced
by the prosecution on all the remaining charges, and in respect of these the
prisoner was acquitted. On appeal to the High Court, he!'l, that the District
Judge should have exercised the powers conferred on him by sections 445
and 446 of the Code of Criminal Procedure, 1872, and then have proceeded to
hold separate trials; that he should not have tried together the charges under
sections 167 and 466 of the Penal Code, as the offences were not of the same
kind within the meaning of section 453 of the Code, but the convictions on
these charges were upheld, us it did not appear that the prisoner had been
prejudiced by the mode of trial adopted. The Empress v. Sreenath Kur,
I. L. 1?., 8 Cal., 450 (1882).
Conviction on Trial of 14 persons together charged with distinct offences (committing
trial of H per- public nuisances) under sections 290 and 2111 of the Penal Code : Held,
ohareed'^with* an jrregu'arity calculated to prejudice the accused. Convictions quashed,
distinct offences. Pidisanki Reddi v. The Queen, I. L. R., 5 Mad., 20 (1882).
Alternative In prosecutions for giving false evidence under section 193 of the Penal
charge-False Code, the case of each person accused should be separately enquired into, and
evidence. j£ cornmitted for trial, separately tried. It is wholly erroneous to include them
in one joint charge. Empress of India v. Niaz Alt, I. L. B.,5 All., 17 (1882).
False evidence— Where several persons are accused of having given false evidence in the
Using evidence same proceeding, they should be tried separately. A, S, B, D and P were
fa'ls^-Separato jointly tried ; A in respect of three receipts for the payments of money, pro-
trial, duced by him in evidence in a judicial proceeding, on three charges of falsely
using as genuine a forged document, and on three charges of using evidence
known to be false ; ii, B, D, and P on charges of giving false evidence in
the same judicial proceeding as to such payments. The Court (Straight, J.),
being unable to say that the accused persons had not been prejudiced in their
defence by having been improperly tried together, set aside the conviction,
and ortlered a fresh trial of each of the accused separately. Empress of India
v. Anant Ram, I. L. R., 4 AIL, 293 (1882).
Joint trial of The accused persons were tried on 27 charges, comprising the offences of
—Comlonution09 tnefti abetment of theft, and receiving stolen property in 1872-73 ; similar
of irregularity offences in 1873-74 ; similar offences in 1874-75 ; the giving and receiving of
where accused gratifications to and by public servants in 1 874-75 ; and, finally, the fabrication
Accoun't-boolts and abetment of fabrication of falso evidence in 1876. One of the accused
—Entries by was convicted on two heads of charge, ami the rest acquitted. The convict
no'wrsonal"1* appc|l'ed against his conviction and sentence ; and the Government appealed
knowledge -Ac- against his acquittal on the other heads as well as against the acquittal of the
count-books rest: Held, tnat the trial was irregular under section 552 of the Code of
vantor agent" of Criminal Procedure, 1872, and so w ould be the hearing of the appeal. The
a Arm relevant High Court, however, heard the appeal in respect of offences in 1874-75 only,
ESv?denceof»c^" appearing that this course did not prejudice the accused persons, who had
cused illegally been fully and fairly tried for those offences. Account-books containing
pardoned-Tlieft entries not made by, nor at the dictation of, a person who had a personal
knowledge of the truth of the facts stated, if regularly kept in course of

business, are admissible as evidence under section 34 of the Indian Evidence
Act I of 1872, and semble under section 32, clause 2. Account-books, though
proved not to have been regularly kept in course of business, but proved to
have been kept on behalf of a firm of contractors by its servants or agent ap
pointed for that purpose, are relevant as admissions against the firm. It is
not competent to a Magistrate to convert an accused person into a witness,
except when a pardon has been lawfully granted under section 347 of the
Code. Evidence given by such a person who had receive 1 a pardon in the
case of an offence not exclusively triable by the Court of Session, held not
relevant, that person not having been acquitted or discharged or convicted.
Possession of wood by a forest inspector, who is a servant of Government, is
possession of the Government itself ; and a dishonest removal of it, without
payment of the necessary fees, from his possession, albeit with his actual con
sent, constitutes theft within the meaning of section 378 of the Penal Code,
if that consent was unauthorised or fraudulent. Reg. v. Haiunaiiki, I. L. R.,
1 Bom., 610(1«77).
234. (/) "When a person is accused of more offences than one J?^0^^
of the same kind committed within the space of twelve months from within year may
the first to the last of such offences, he may be charged with, and ^the*"* '°"
tried at one trial for, any number of them not exceeding three.
(2) Offences are of the sime kind when they are punishable
with the same amount of punishment under the same section of
the Indian Penal Code or of any special or local law.
The accused persons were tried on 27 charges, comprising the offences of Joint trial cf
theft, abetment of theft and receiving stolen property, in 1872-73; similar »«P»rate often-
offences in 1873-74 ; similar offences in 1874-75; the giving and receiving of ce*"
gratifications to and by public servants in 1874-75 ; and, finally, the fabrica
tion and abetment of fabrication of false evidence in 1876. One of the
accused was convicted on two heads of charge, ami the rest acquitted. The
convict appealed against his conviction and sentence; and the Government
appealed against his acquittal on the other hea is as well as against the
acquittal of the rest. Held, that the trial was irregular under section 452 of
the Code of Criminal Procedure, 1872 ; and so would be the hearing of the
appeal. The High Court, however, heard the appeal in respect of offences in
1874-75 only, it appearing that this course did not prejudice the accused
persons who had been fairly tried for those offences. Reg. v. Hantnanta,
I. L. K., 1 Bom., 610 (1887).
An accused was charged with criminal breach of trust as a public servant Charge of three
in respect of three separate sums of money deposited in the Savings Bank 2am"C<kind—'hC
under throe separate accounts. The trial of these charges related to the mis- irrwularit.v
appropriation of Ks. 195 composed of two separate sums of Rs. 150'aml °^{^°"^ a
Rs. 45, alleged to have been misappropriated on the 16th and 25th November justice,
respectively. Those sums the accused in his statement at the trial stated ho
had paid over on those dates to the depositor, and produced an account book
showing entries of such payments on those dates. This statement was proved
to be untrue, and the accused was convicted On an application to quash the
conviction on the ground that the trial had been held in contravention of sec
tion 234 of the Criminal Procedure Code, 1882 : Held, that the entries in the
account books did not clearly show that the misappropriation of the sum of
Rs. 195 took place on two dates, or consisted of two transactions, the entries
having been made for the purpose of concealing the criminal breach of trust :
and that under the circumstances the criminal breach of trust with regard to
the Rs. H>5 was really one offence, and could be included in one charge. Semble,
320 Proceedings tn Prosecutions. [Chap. XIX.
{per Petiieram, C. J ), that if a man were tried for four specific offences of
the same kind at one trial, su'.'h a procedure would not be merely an irregularity
which could be cured by section 537 of the Code, but a defect in the trial which
would render the whole trial inoperative, unless possibly it could be cured by
some subsequent proceeding by striking out some portion of the charge. In
re Luchminarain, I. L. R., 14 Cal., 128 (1886).
Joinder of Where a post-master was accused of having, on three different occasions,
cliarires—Often- within a year, dishonestly misappropriated moneys p;iid to him by different per-
)i?nd committed 80us ôr money- orders, held, that the offences of which such person was accused
in respect or being the dishonest misappropriations by a public servant of public moneys (for
«onsrcnt Per' as soon as they were paid they ceased to be the property of the remitters), such
offences were " of the same kind " within the meaning of section 234 of the
Criminal Procedure Code. 1882. and such person might, therefore, under that
section, be charged with, and tried at one trial for, all three offences. Quten-
Empress v. Juala Prasad, I. L. R , 7 All., 174 (1884).
Offences of the Where an accused was charged under one charge including four counts,
mitted'ilfres-"1* *** —^ house-breaking by night with intent to commit theft in the house
pact of different of A ; (2) theft from the same house : (3) house-breaking by night with a
persons. Jike intent in the house of B ; (4) theft from that house ; am) where he
pleaded guilty to the first and third charges : Held, that the case was within
the terms of section 453 of the Code <f Criminal Procedure, 1872, and that the
words " offences of the same kind " are not to be limited by the explanation to
that section, but include a case like this, where a man has within a year commit
ted two offences of house-breaking. Held, also, that the words "offences of the
same kind " are not limited to offences against the same person. Per Field,
J.—The explanation to section 453 must be understood as extending and not
as limiting the meaning of that section. Per Norms, J.—Care should be taken
that accused persons are not prejudiced by charges being joined, and the
Court should at all times be anxious to lend a willing ear to any application
upon their behalf by separation of charges anil for separate trials upon sepa
rate charges. Mann Miya v. The Empress, I. L. R., 9 Cal., 371 (1882).
Offences of A prisoner cannot be tried at the same trial for receiving or retaining
-Effects'?" (»ection 411, Penal Code), and habitually receiving or dealing in (section 413),
procedure - stolen property. The proper course is to try the accused first for the offences
JiSfw i", trial.
folluucdiit ?l? i "nder
...sectionAl 411,' and
. if he is. convicted,
4. to try.....
him under section
i 413, putting
e j
in evidence the previous convictions under section 411, and proving the find
ing of the rest of the property in respeet of which no separate charge, under
section 411, could be made or tried by reason of the provisions of section 453
of the Criminal Procedure Code, 1872. The Empress v. Uttom Koondoo,
I. L. R., 8 Cal., 634 (1882).
Separate trials- The prisoner was committed for trial on fifty-five charges, including
Offences of the turee c|iargeg lln,ier sections 167, 466, and 471 of the Penal Code. At the
Amendment of trial before the District Judge sitting with assessors, the Court informed tho
charge. prisoner that the trial would be confined to the three charges last mentioned.
The prisoner was convicted on those, but the Court allowed evidence to be
adduced by the prosecution on all tho remaining charges, and in respect of
those the prisoner was acquitted. On appeal to the High Court : Held, that
the District Judge should have exercised the powers conferred on him by sec
tions 445 and 446 of the Code of Criminal Procedure, 1872, and then have pro
ceeded to hold separate trials ; that he should not have tried together the
charges under sections 167 and 466 of the Penal Code, as the offences wore
not of the same kind within the meaning of section 453 of the Procedure
Code ; but the convictions on these charges were upheld, as it did not appear
that the prisoner had been prejudiced by the mode of trial adopted. Tfw
Empress v. Sree Xalh K»r, I. L. R.: 8 Cal 450 (1882)
S. 235.J Proceedings in Prosecutions, 321
M was Recused of cheating G on two different occasions, und also of Offences of the
elieuting K on a third occasion. The three offences were eouinutted within Saiued hi re«™"
one year of each other ; and .1/ was charged and tried at the same time for pect of different
the three offences. Held, that ouch joinder of charges was irregular, inas- P"80"*
much as the combination of three offences Qf the same kind, for the purpose
of one trial, can only be, were such offences have been committed in respect
of one and the same person, and not against different prosecutors, within
the period of one year, as provided in the Criminal Procedure Code, 1872
Empress ofIndia v. Murari, I. L. H., 4 All., 147 (1881).
Section 453, Code of Criminal Procedure, 1872, simply places a statutory 8eo»rmte
limit
'in on the number of charges
".■ which
i mayj legally . j formanrpart of a sinjrlo trial,
. .• fJ'M'Boj- Di»-
there is■ nothing
.1- in the section, however, tot> prevent o being
accused irom tinct offence*
separately charged and tried on tbc same day for any number of distinct
offences of the same kind committed within the year. The Emyreni v. Demon-
joy Baruj, I. L. K., 3 Cat., J.40 (1878)
235. (/) If, in one series of acts so connected" together us ty mun
form the same transaction, more offences than oue are committed offence,
by the same person, he may be charged with, and tried at one
trial for, every such offence.
(2) If the acts alleged constitute an offence falling within two "?£elwfo del"
or more separate definitions of any law in force for the time heiug nitlom
by which offences are defined or punished, the person accused of
them may be charged with, aud tried at one trial for, each of such
offences.
(3) If several acts, of which one or more than one would by it _Acts oonslilut-
ffence.
self or themselves constitute an offence, constitute when combined, rt^^SSfSS
a different offence, the person accused of them may be charged a different
with, and tried at one trial for, the offence constituted by such acts 0 e,,ce"
when combined, and for any offence constituted by any one, or
more, of such acts.
(J) Nothing contained in this section shall affect the Indian
I'cnal Code, section 71.
Illustration*
to nut-section (/) —
(«) A reseues B, u person in lawful custody, and in so doing caus
es grievous hurt to C, a constable in whose custody B was. A way
be charged with, and convicted of, offences under seetious 225 and 333
of the Indian Penal Code.
(6) A commits house-breaking by day with intent to commit adul
tery, and commits, in the house so entered, adultery with B's wife. A
may be separately charged with, and convicted of, offences under sec
tions 454 aud 497 of the Indian Penal Code.
(c) A entices B, the wife of C, away from (', with intent to com
mit adultery with B, and then commits adultery witli her. A may be se
parately charged with, and convicted of, offences under sections 498 aud
497 of the Indian Penal Code.
21
322 Proceedings in Prosecutions [Chap. XIX.
(<f) A has in his possession several seals, knowing them to be coun

terfeit and intending to use them for the purpose of committing seve
ral forgeries punishable under section 4G6 of the Indian Penal Code. A
may be separately charged with, and convicted of, the possession of each
seal under section 473 of the Indian Penal Code.
(p) With intent to cause injury to B, A institutes a criminal pro
ceeding against him, knowing that there is no just or lawful ground for
such proceeding ; and also falsely accuses B of having committed an
offence, knowing that there is no just or lawful ground for such charges.
A may be separately charged with, and convicted of, two offences under
section 211 of the Indian Penal Code.
(J) A, with intent to cause iujury to B, falsely accuses him of
having committed an offence, knowing that there is no just or lawful
ground for such charge. On the trial, A gives false evidence against B,
intending thereby to cause B to be convicted of a capital offence. A
may be separately charged with, and convicted of, offences under sec
tions 211 and 194 of the Indian Penal Code.
(ff) A, with six others, commits the offences of rioting, grievous
hurt and assaulting a public servant endeavouring in the discharge of his
duty as such to suppress the riot. A may be separately charged with,
and convicted of, offences under sections 147, 325 and 152 of the Indian
Penal Code.
(h) A threatens B, C and D at the same time with injury to their
persons with intent to cause alarm to them. A may be separately
charged with, and convicted of, each of the three offences under section
50G of the Indian Penal Code.
The separate charges referred to iu Illustrations (a) to (/<) respec
tively may be tried at the same time.
to sub-section (2) —
(«') A wrongfully strikes B with a cane. A may be separately
charged with, and convicted of, offences under sections 352 and 323 of
the Indian Penal Code.
0) Several stolen sacks of corn arc made over to A and B, who
know they are stolen property, for the purpose of concealing them. A
and B thereupon voluntarily assist each other to conceal the sacks at the
bottom of a grain-pit. A and B may be separately charged with, and
convicted of, offences under sections 411 and 414 of the Indian Penal
Code.
(&) A exposes her child with the knowledge that she is thereby
likely to cause its death. The child dies in consequence of such ex
posure. A may be separately charged with, and convicted of, offences
under sections 317 and 304 of the Indian Penal Code.
(I) A dishonestly uses a forged document as genuine evidence, in
order to convict B, a public servant, of an offence under section 167
of the Indian Penal Code. A may be separately charged with, and

convicted of, offences under sections 471 (read with 466) and 196 of the
same Code.
to sub-ection (3)—
(m) A commits robbery on B, and in doing so voluntarily causes
hurt to him. A may be separately charged with, and convicted of,
offences under sections 323, 392 and 394 of the Indian Penal Code.
[71 (P. C). Where anything which is an offence is made np of [Limit of pun-
parts, any of which part is itself an offence, the offender shall not be "ne™^tmê up
punished with the punishment of more than one of such his offences, of several
unless it be expressly provided. 0 ence*-
Where anything is an offence falling within two or more separate

definitions of any law in force for the time being by which offences arc
defined or punished, or
where several acts, of which one or more than one would, by itself
or themselves, constitute an offence, constitute, when combined, a differ
ent offence,
the offender shall not be punished with a more severe punishment
than the Court which tries him could award for any one of such offences.
Illustrations.
(a) A gives Z fifty strokes with a stick. Here A may have com
mitted the offence of voluntarily causing hurt to Z by the whole beating
and also by each of the blows which make up the whole beating. If A
were liable to punishment for every blow, he might be imprisoned for
fifty years, one for each blow. But he is liable only to one punishment
for the whole beating.
(6) But if, while A is boating Z, Y interferes, and A intentionally
strikes Y, here, as the blow given to Y is no part of the act whereby A
voluntarly causes hurt to Z, A is liable to one punishment for volun
tarily causing hurt to Z, and another for the blow given to Jr.]
When a prisoner is convicted of rioting and of hurt, and the conviction Separate ten-
for hurt depends upon the application of section 149 of the Penal Code, tences for riot •
it is not illegal to pass two sentences, one for riot, and one for hurt : pro- i"Ran<18'rievcu«
vidod the total punishment does not exceed the maximum which the Court
might pass for any one of the offences. When, however, the accused is
guilty of rioting, and is also found to have himself caused the hurt, he may
be
I. L.punished both 260
R., 17 Bom., for rioting
(1892). and for hurt. Queen-Empress v. Sana Puma J '
At the commencement of a trial before a Court of Session on a vibration of
charge under section 206 of the Penal Code, the Public Prosecutor applied chaiye-Addi-
to the Court to frame new heads of charge under sections 423 and 424 tion of char&e*
of the Code. The Sessions Judge postponed passing any final decision upon mo* of0"
this application, until it became apparent that the charge under section 206 acquittal,
was not sustainable on the evidence to be adduced by the prosecution. After
hearing the evidence for the prosecution on this charge, the Sessions
324 Proceedings in I rosecutions. [Chap. XIX.
Judge, without going into the defence, or recording the opinions of the
assessors, passed an order of acquittal. At the same time he rejected the
application for framing new heads of charge, holding, on the authority
of Queen- Empress v. Appa, that he had no power to frame any new
charges in addition to the original charge. He was also of opinion
that the dismissal of n complaint which the prosecutor had previously tiled
against the accuoed on the very charges which were sought to be added,
was also a sufficient ground for rejecting the application. The local
Government appealed to the High Court against the order of acquittal. At
the hearing of the appeal it was contended on behalf of the Crown that the
Sessions Julge was wrong in refusing to frame additional charges as sought
by the Public Prosecutor. The accused's counsel objected to this point being
raised by Government in an appeal against an order of acquittal. Held, per
Telasu, J., (1) that under section 417 of the Code of Criminal Procedure,
1882, it was not open to Government to appeal to the High Court on the
ground of the Sessions Judge's refusal to add new charges, or against any
other interlocutory order made during the trial ; (2) that the Sessions
Judge ought to have finally disposed of the application for framing additional
charges at the very commencement of the trial when it was made, especially
because it did not purport to be based on any facts other than those contain
ed in the depositions recorded by the committing Magistrate. Queen-Empress
v. Vujiram, I. L. I!., 16 Bom., 414 (1892).
Separate often- Where four accused were at one and the same trial tried for offences of
cea. en*6ct of murder und robbery committed in the course of one transaction and for
Mime "'proceed- anotner robbery committed two or three hours previously and at a place
ing. close to the scene of the robbery and murder : Held, that the trial of
these separate offences together, though an error or irregularity within the
meaning of section 537 of the Code of Criminal Procedure, 1882. would not
necessarily render the whole trial void. Queen-Empress v. Muluu, I. L. K.,
14 All., 502 (1892).
Separate w:n- Separate sentences passed upon persons for the offences of riotiug and
fences for riot- grievous hurt are not legal where it is found that such persons individually
l)"urt."d K"eVlH"! ^'d not commit any act which amounted to voluntarily causing hurt, but were
guilty of that offence under section 149 of the Penal Code. Nilmony
Poddar v. Queen-Empress, I. L. K., 10 Col., (F.B.) 44 J (1889).
Immaterial A woman, being a member of the dancing-girl caste, obtained possession of
irregularity. a minor girl, and employed her for the purpose of prostitution ; she subse
quently obtained in adoption another minor girl from her parents, who be
longed to tho same caste. She and the parents of the second girl were charged
together under sections 372 and 373 of the Penal Code. The charge related to
both the girls. Held, (I) that the two charges should not have been tried
together, but the irregularity committed in so trying them had caused no
failure of justice ; (2) that sections 372 and 373 of the Penal Code may be
applicable in a case where the . miuor concerned is a member of the dancing-
girl caste. Per Muttusami Ayyab, J.—It would be no offence if the inten
tion was that the girl should be brought up as a daughter, and that when she
attains her age, she should be allowed to select either to marry or follow the
profession of her prostitute mother. — Queen-Empress v Ramanne, I. L. K-,
12 Mad., 273 (1889).
Separate convic- An accused person was convicted uuder section 457 of the Ponal Code
tioiu for differ- of house-breaking by night in order to commit an offence (mischief and
the MmeCtran»'- assault), and also under sections 426 and 352 for the offences of mischief and
action. assault, and punished separately for each offence. These offences formed
parts of one transaction Held, that the seuteuces were legal. Queen-Empress
v. Nirichan, I. L. B., 12 Mad., 36 (1888).
'S. 235.] Proceedings in Prosecutions, 325
In prosecution of the common object of an unlawful assembly M, with Diatinct offen-

his own hand, caused grievous hurt. Mnnd other members of the assembly, oe«--separat«
as to whom it did not appear whether or not any of them personally used force **" ,'nce',•
or violence, were convicted of rioting under section 147 and grievous hurt
under section 325 of the Penal Code, and were each sentenced to separate
terms of imprisonment for each offence. The highest aggregate puushnient
which was Af'* was six years' rigorous imprisonment, being one year for riot
ing and Ave yesre for causing grievous hurt. Held, that assuming section 71
of the Penal Code to be applicable, the sentences were not illegal, as the com
bined periods of imprisonment did not, in the case of any prisoner, oxceed the
inaximiin punishment of seven years' rigorous imprisonment which could have
been awarded for the offence punishable under section 325. Held, also, that
the riot could not, in any of the cases, be considered a part of the offence under
section 325, that section 71 did not apply, and that the sentences were legal.
Qmrn-Kmpre** v. Bi*he*har, I. L. R., 9 All., 645 (1887).
Four persons were charged with being members of an unlawful assembly Cumulative sen-
consisting of themselves and others, the common object of which assembly p'lê~eotivic>
was resisting the execution of a legal process, namely, the arrest of a judg- tionB for more
ment debtor by a Civil Court [icon, who went with a wamnt for his arrest ^"1°nea°^"ce
accompanied by other persons, A and B, for the purpose of identifying him, ^mblnelT form
and with using force or violence in prosecution of the common object, such one offence,
force or violence consisting of an assault on the Civil Court peon and another
bv means of a dangerous weapon on A. The Deputy Magistrate convicted
all the accused of offences under sections 147 and 353 of the Penal Code, and
sentenced them to six months' rigorous imprisonment under the former nection
and two months' rigorous imprisonment under the latter. He further convic
ted one of the accused of an offence under section 324, in respect of the as
sault on A, and sentenced him to one month's rigorous imprisonment in respect
of the offence, and directed tliat the sentences were to take effect one on the
expiry of the other. Held, that the offence of rioting was completed by the
assault on A, and that the assault on the peon was a further offence under the
first sub-section of 235 of the Code of Criminal Procedure, 1882. Held, further,
that even if A had not been assaulted, the convictions and sentences passed
for rioting and the assault on the peon were legal, inasmuch as the acts of the
accused taken separately constituted offences under sections 143 and 353 of the
Penal Code, and combine! all offences under section 147 ; and under section
235, sub-section 3 of the Code, the accused might be charged with and tried
at one trial for the offence under section 147, and those under sections 143 and
353, and therefore also separately convicted and sentenced for each such offence,
provided the punishment did not exceed the limit imposed by section 71 of
the Penal Code, as amended by section 4 of Act VIII of 1882, which limit had
not been exceeded in the present case. In re Chun/Ira Kant flhattacharjee v.
The Queen-Emprets, I. L. R., 12 Cal., 495 (1886).
The accused was convicted at one trial by a Magistrate of the first-class, Simultaneous
of the offences of house-breaking by night with intent to commit theft, conviction* for
punishable under section 457, and of theft in a dwelling-house, punishable ^8^™'^'!,'.°*"
under section 380 of the Penal Code—the two offences being part of the
same transaction, the theft following the house-breaking. The prisoner was
sentenced to two years' rigorous imprisonment under section 457, and to six
months' rigorous imprisonment and a fine of Rs. 100, or, in default of pay
ment, three months further rigorous imprisonment under section 380. The
District Magistrate referred the case to the High Court, on the ground that
the aggregate of punishment awarded on the two heads of charge exceeded
the powers of the first-class Magistrate who tried the case. The Sessions
Judge, to whom an appeal had been preferred, was of the same opinion, and
reduced the sentence to two years' rigorous imprisonment. Held, that as the
accused committed two distinct offences which did not " constitute, when
326 Proceedings in Prosecutions [Chap. XIX,
combined, a different offence " punishable under any section of the Penal Code,
section 71 of the Code did not apply, and as the aggregate punishment
did not exceed twice the amount of punishment which the trying Magistrate
was competent to inflict, the sentences were legal under section 35 of the
Code of Criminal Procedure, 1882. Queen-Empress v. Sakharam Bhau, I.
L. R., 10 Bom., 493 (1886).
Distinct often- The offence of rioting armed with a deadly weapon, and voluntarily
charges!*1'*18 causing hurt with a dangerous weapon to two persons, are distinct offences ; and
a person charged with such offences can be convicted and sentenced in respect
of the rioting and of the hurt caused to each of the persons injured. A and
D were charged with rioting armed with deadly weapons, under section 148
of the Penal Code ; and they were also charged under section 324, coupled
with section 149, with causing hurt by a dangerous weapon to X ; and B was
further charged, under section 324, with causing like hurt to Y ; A being also
charged under section 324, coupled with section 149, in respect of the hurt
caused by B to Y. A and B were convicted on all charges, and separate sen
tences, to take effect in succession, were awarded in respect of each offence
charged. The offences under section 324 were committed during the riot.
Held, that the several acts with regard to which the prisoners were charged
did not fall within the provisions of section 71 of the Penal Code, inasmuch
as it was not found that the causing of the hurt was the force or violence
which alone constituted the rioting, and that, consequently, under section 235
of the Code of Criminal Procedure, the several sentences passed were strictly
legal. Loke Nuth Sartor v. Queen-Empress, I. L. R., 11 Cal., 349 (1885).
Offence nude Three persons who were convicted—(1) of riot under section 147 of the
offences-Îlfu1 Penal Code, (2) of causing grievous hurt in the course of such riot, were res
ins—Grievons* pectively sentenced to six months' rigorous imprisonment under section 147
nurt- and three months' rigorous imprisonment under section 325. Held by Pkthe-
ii.\M,C. J., and Straight and Tyrrell, JJ., that inasmuch as the evidence upon
the record showed that the three prisoners had committed individual acts of
violence with their own hands, which constituted distinct offences of causing
grivous hurt or hurt separate from, and independent of, the offence of riot,
which was already completed, and the fact of the riot was not an essential
portion of the evidence necessary to establish their legal responsibility under
section 325 of the Penal Code, the separate sentences passed under sections
147 and 325 were not illegal. Per Brodhorst, J., that the evidence showed
that only one of the three prisoners had caused grievous hurt with his own
hands, and that the others could only be properly convicted of that offence
under the provisions of section 149 of the Penal Code ; but that the separate
sentences passed under sections 147 and 325 were not illegal. Also per
Brodhurst, J.—Illustration (g) of section 235 of the Code of Criminal Proce
dure, 1882, does not apply merely to the case of persons who, in addition to the
offence of rioting, have, with their own hands, committed the further offences
of voluntarily causing grievous hurt and of assaulting a public servant when
engaged in suppressing a riot ; and the convictions referred to in the illustra
tion relate especially to convictions obtained under the provisions of section
149 of the Penal Code. Queen-Empress v. Ram Sarup, I. L. R., 7 All., (F. B.)
757(1885).
Offences com- The accused, Jafir Khan, was found guilty of rioting, being armed with a
lame*1 transac- dead'y weaP0D, namely, a sword, and also of having voluntarily caused hurt
tion—Unlawful by means of that weapon to one M It, and was sentenced to separate punish-
osnenibly— ments for each of these offences. In appeal it was contended that he could
hurt? not be seParately sentenced under sections 148 and 326 of the Penal Code.
Held, approving the decision in I. L.R., 7 All., 29, that as the acts of which
Jafir Khan has been found guilty constitute two offences of a different
character, though committed in the course of the same transaction, each is
separately punishable. Jafir Khan v. The Empress, Punj, Rec , 1885, 70.
S. 236.J Proceedings in Prosecutions. 327
The offences of rioting, of voluntarily causing hurt, and of voluntarily Offences die
causing grievous hurt, each of the two latter offences being committed ^"'i'.^f,?^™''
against a different person, are all distinct offences within the meaning oT nee- illegal,
tion 35 of the Code of Criminal Procedure, 1882. Under the first paragraph
of section 235 of the Code, a person accused of rioting anil of voluntarily
causing grievous hurt may be charged with, and tried for each offence at ono
trial, and under section 35 a separate sentence may bo passed in respect of
each. Queen-Empress v. Dungar Singh, I. L. R., 7 All., 29 (1884).
A member of an unlawful assembly, some members of which have cans- Offence made up
ed grievous hurt, cannot lawfully be punished for theoffeuco of rioting as encea!6™ °
well as for the offence of causing grievous hurt. Empress v. Ram Partab,
I. L B.,6 Ail., 121 (1883).
Where persons are charged with rioting and also with causing hurt, id- Committal on
though they may be tried as for one offence under section 454 of the Code chances -'frial'0
of Criminal Procedure, 1872, it is not illegal to try them for both offences as for one
separately Amiruddin v. lurid Sarkar, I. L. It., 8 Cal., 481 (1882). oftenoc.
Rioting and causing hurt in the course of such rioting are distinct up6"1,0 8everul
offences, and each offence is separately punishable. Empress of India v, Rum offences.
Adhin, I. L. R., 2 All., 13'.) (187'J).
No Magistrate is entitled to spilt up an offence into its component parts Nof entitled to
for the purpose of giving himself summary jurisdiction. If a charge of an onenafinto its
offence not triable summarily is laid and sworn to, the Magistrate must pro- component
ceed with the case accordingly, unless he is at the outset in a position to show P^s-Juriadic-
from the deposition of the complainant that the circumstances of the aggrava
tion are really mere exaggeration and not. to be believed. Therefore, a Magis
trate, when he has before him a person charged with having been armed with
a deadly weapon while a member of an unlawful assembly, is not at liberty to
disregard that part of the charge which charges the prisoner with having been
armed with a deadly weapon, and so to give himself jurisdiction to try tho
case summarily, and then, by inflicting a sentence of imprisonment not ex
ceeding tliree months, to deprive the prisoner of his right of appeal. The
Empress v. Abdool Karim, I. L. P.., 4 Cal., 18 (1878).
Where a person committed a trespass with the intention of committing Criminal
mischief, thereby committing criminal trespass, and at the same time com- P"'-
mitted mischief, held, that such person could not, under clause (3) of section
454 of the Code of Criminal Procedure, 1872, receive a punishment more severe
than might have been awarded for either of such offences. The provision of
that law do not in such a case prohibit the Court from passing sentence in
respect of each offence established. Empress of India v. Dudh Singh, I. L. R.,
2 All., 101 (1878).
A prisoner, tried, convicted and punished under section 3G9 of the Penal Abetment and
Code of abducting a child with intent dishonestly to take moveable property, theft,
cannot also be punished for the theft of a part of the moveable property
which he intended dishonestly to take through means of tho abduction ; and
the second punishment for a theft is by the present Code of Criminal Pro
cedure, 1872, illegal. In re Nonjan, 7 Mad. H. C, 375 (1874).
236. If a single act or series of acts is of such a nature where it u
that it is doubtful which of several offences the facts which can he dj"n'ûlh*DSt
proved will constitute, the accused may be charged with having been commit-
committcd all or any of such offences, and any number of such t*d"
charges may bo tried at once ; or he may be charged in the
alternative with having committed some one of the said offences.
328 Proceedings in Prosecutions, [Chap. XIX
]11uitration*.
[a) A is accused of an act which may amount to theft, or receiv
ing stolen property, or criminal breach of trust, or cheating. He may
be charged with theft, receiving stolen property, criminal breach of
trust and cheating, or he may be charged with having committed theft,
or receiving stolen property, or criminal breach of trust or cheating.
(i) A states on oath before the Magistrate that he saw B hit C
with a club. Before the Sessions Court A state* on oath that he never
hit C. A may bo charged in the alternative and convicted of intention
ally giving false evidence, although it cannot be proved which of these
contradictory statements was false.
[PunUhnier.t <5f [72 (P.O.). In all cases in which judgment is given that a person
onôfêl'."'™' is gii'tj of one of Several offences specified in the judgment, but that
"i«temeiit,hftai 'S ('ou'}tûl °^ which of these offences he is guilty, the offender shall
inn thnt it V be punished for the offence for which the lowest punishment is provided
whiob!]' °f tne same Pun'snmpnt i» n°t provided for all.]
Previous acqii if .'the word " verdict," as used in clause ((/) of section 423 of the Code
Sir tohfiirther °^ ml rial Procedure, 1882, in cases where an accused person is tried for
trial Single net various offences arising out of a single act or series of acts, as contemplated
*°"e™Voffen<cs ^t.i'oh 2^)' ™Chns tno entire verdict on all the charges, and is not limit-
—Power* of"m' t(?d to the verdict on a particular charge upon which an accused may have
peltate Court beferi convicted and appealed against. Where an accused person is charged
of gij^jlll* with.att'd tried for various offences arising out of a single act or series of acts,
ll >tmi -EJfo't it beihg doubtful which of those offences the actor acts constitute, and where
of order di- he lias been acquitted liv the verdict of a jury of some of such offences and
where^'ono not convicted of others and appeals against such conviction, and where the Appel-
cjnstitute? no- late Cotirt reverses the verdict of the jury, and orders a re-trial without any
"JJ1 there^hliH eXPr?ss lihtitatiori as to the charges uppn which such re-trial is to held, such
been an acquit- re-trial must be taken to he upon all the charges as originally framed, nnd
eha °" and" h f'1C a0(l"',tl1' '\V fhe jury on the previous trial upon some of such charges is
conviction on 00 Dar tn 'ue accused hoing tried on Uiem again, as, having regard to the
others, and an provisions of section 423 of the Code, the provisions of section 403 in that
tncêonvicrinn resPCf;t cannot apply to such cases. Krishna Dhan Mandril v. Qiifen-Emprett,
OnWrf." I. L. It., 22 Cal., 377 (1804).
Alternative Section 230 of the Code of Criminal Procedure, 1882, only authorises a
rharsw. charge in the alternative where it is doubtful which of several offences the
facts which can be proved will constitute, and not where there may l>e a
doubt as to the fact which constitute one of the elements of the offence.
Wafadar Khan v Quee»-Bmpre$i, I. T,. P.., 21 Cal., 957 (.1804).
Contradictory The accused was, charged, in the alternative, by the trying Magistrate as
CwHn^ter- follows : -" I. W. W. Drew, Magistrate, first-class hereby charge you, Ram-
native of two ji Sajabarao, as follows :—That vou, on or about the 13th day of October,
ces^mder'fwo 1882> at Nandarpada, stated that you had seen Vishnu Vaman and Mahadu
different sec- Ijakshman carrying tcak-wond from Gohe Forest to Narayan Ramehandra, range
CnJ* °' P'>^n, f°rost ameer, and on 14th February,1885, you stated on oath before the first-class
Magistrate at Pen, at the trial of these persons, that you did not see where they
had bYonght the wood from, and thereby committed an offence punishable
under Rection 182 or section 103 of the Indian Penal Code and within my
cognizance : and I hereby direct that you, Bamji Sajabarao, be tried by the
said Court on the same charge/' At the trial the accused asserted the truth
of the former of these too statements, and denied having made the other.
The Magistrate was unable to find which of them was false, and convicted the
accused, in the alternative, either under section 182 or section 193 of the
Penal Code. Held, that the charge was bad in law, being an alternative
charge in a form forbidden by section 233 of the Code of Criminal Procedure,
1882, which directs that for every distinct offence of which any person is
charged, there shall be a seiinrate charge. Nor could the accused be tried
upon a charge framed in the alternative as in the form in Schedule V—XXVIII
(4) of the Criminal Procedure Code, 1882. For, upon the facts alleged, there
was no way of charging him with one distinct offence on the ground of self-
contradiction. He could not successfully be charged under section 193 of the
Penal Code on contradictory statements, because he only made one deposition,
in which there were no discrepancies ; and, similarly, he could not be charged
under section 182 of the Penal Code, for he onl}- once gave information to a
public servant Held, also, t tint having regard to sections 225, 232, and 537
of the Criminal Procedure Code, 1882, the accused, convicted upon such a
charge, must be held to have been misled in his defence, and his conviction
and sentence reversed. In charges founded upon supposed contradictory
statements even- presumption in favour of the possible reconciliation of the
statements must be made. Under section 172 of the Indian Forest Act, VII
of 1878, a forest officer is a public servant within the meaning of the Penal
Code. Any false information given to him with the intent mentioned in sec
tion 182 of the Penal Code is punishable under that section, whether that in
formation is volunteered by the informant, or is given in answer to questions
put to him by that officer. Queen- Empress v. Ramji Sajabarao, I. L. R., 10
Bom., 124 (1885).
Tn a charge under section 193 of the Penal Code, it is not necessary to Alternative
allege(unless
cient which of twosatisfactory
some contradictory statements
explanation of upon oath is false, but
the contradiction it isliesuffi-
should es- {^7,kh*>7^1»"».
rn'"irl«."r> " " *'*
tablished) to warrant a conviction of the ott'etice of giving false evidence to
show that an accused person has made one statement upon oath at one time, and
a directly contradictory statement at another. Per Diitiioit, J.— Every possi
ble presumption in favour of a reconciliation of the two statements should
be made ; and it must be found that they are absolutely irreconcilable before
a conviction can he had upon the ground that one of them is necessarily false.
Queen-Empress v. Gimlet. I. L. K., 7 All., 44 (1884).
Section 455 of the Code of Criminal Procedure, 1872, applies to cases in Judgment in
which, not the facts are doubtful, but the application of the law to the facts is Jh« iiHem«-
doubtful. Judgment in the alternative cannot he passed in cases in which it ,u"
is doubtful whether the accused person is guilty of any one of the several
offences charged, but where it is doubtful of which of those offences he is
guilt}'. The accused persons were committed for trial under an erroneous and
untenable alternative charge under section 193 of the Penal Code. The
■Court of Session amended the charge under section 193, and added charges
under sections 201 and 203. It was doubtful whether the amendment
and addition were not likely to prejudice the accused in their defence. The
alleged false evidence, and not its assumed substance and purport, should be
set forth in a charge under section 193. Queen v. Jamvrlia, 7 All. H. C, 137
(1875).
237* (/ ) If, in the cise mentioned in section 286, the accuser! Whfii a person
is charged with one offence, and it appears in evidence that he one'orTomi "'ili
committed a different offence for which he might have been charg- <•"»*'<"
iii •• ei »i t • 1 1 * ' nnotner.
ed under the provisions ot that section, he may be convicted of the
offence which he is shown to have committed, although he was not
charged with it,
33° Proceedings in Prosecutions [Chap. XIX.
(2) When the accused is charged with an offence, he may be

convicted of having attempted to commit that offenoe, although
the attempt is not separately charged.
Illustration.
A is charged with theft. It appears that he committed the offence
of criminal breach of trust, or that of receiving stolen goods. He may
be convicted of criminal breach of trust, or of receiving stolen goods (as
the case may be), though he was not charged with such offence.
When often™ 238. (1) When a person is charged with an offence con-
PnTiToii'co11"1"1 listing of saveral particulars, a combination of some only of which
1'iuintofi. constitutes a complete minor offence, and such combination is
proved, but the remaining particulars are not proved, he may be
convicted of the minor offence, though he was not charged with it.
(2) AVhen a person is charged with an offence and facts are
proved which reduce it to a minor offence, he may be convicted
of the minor offence, although he is not charged with it.
(3) Nothing in this section shall be deemed to authorise a
conviction of any offence referred to in section 198 or section 199
when no complaint has been made as required by that s?ction.
Illustration*.
(a) A is charged, under section 407 of the Indian Penal Code,
with criminal breach of trust in respect of property entrusted to him as
a carrier. It appears that he did commit criminal breach of trust under
section 406 in respect of the property, but that it was not entrusted to
him as a carrier. He may be convicted of criminal breach of trust un
der section 406.
(b) A is charged, under section 325 of the Indian Penal Code,
with causing grievous hurt. He proves that he acted on grave and sud
den provocation. He may be convicted under section 335 of that Code.
Minor offence, An offence under section 3i>5 of the Penal Code is, within the meaning
wUhouV'torraal of section 238 of the Criminal Procedure Code, 1882, a minor offence as com-
churge. pared with offences under section 3G6 and section 376 of the Penal Code ;
and the High Court in dealing with a case under section 307 of the Code can
convict an accused of the former offence without a formal charge having been
framed. Per Baxerji, J. — The words " minor offence " have not l>een de
fined by law ; they are to be taken not in any technical sense, but in their ordi
nary sense. Queen-Empress v. Sitanath Mundal, I. L. B., 22 Cal., 1006 (1895).
Conviction for The complainant charged the accused with an offence under section 366
whe% evfdcncc of tne Penttl ^0ll° m reRPect of lua ,vife- T,ie Deputy Magistrate convicted
is insufficient the accused under section 4P8 of the Penal Code, and sentenced him to one
for grave month's rigorous imprisonment. The Sessions Judge being of opinion that
offence. ^ jjenUty Magistrate had no jurisdiction to convict the accused under sec
tion 498, there being no complaint by the husband under section 199 of the
Criminal Procedure Code, 1882, and that the offence did not fall under sec
tion 23S of the Code, referred the case to the High Court. Held, that such a
case is within the intention of section 238. The intention of the law is to
Ss. 238-239] Proceedings in Prosecutions, 331
prevent Magistrates enquiring, of their own motion, into cases connected with
marriage unless the husband or other person authorised moves them to do so.
But when the husband is complainant and brings his complaint under section
366, a conviction under section 498 may properly be had if the evidence be
such as to justify a conviction for the minor offence, and yet insufficient for
a conviction for the graver one. Jatra Shekh v. Beazal Shekh, I. L. R., '20 .
Cal., 483 (1892).
The accused wore subjects of His Highness the Gaekwar of Baroda. Conviction (or
They were extradited for committing dacoity in British India. The Magis- ^rcerent^from
trate, who held a preliminary enquiry into the matter, committed the accused that with which
to the Sessions Court on a charge under section 398 of the Penal Code. The accused is
Sessions Judge amended the charge to one under section 395, on the ground char8ed'
that, as the accused had been extradited on a charge under section 395, they
could be tried and convicted only under that section, and no other. At the end
of the trial, the Sessions Judge rinding that the accused were guilty of theft,
but not of dacoity, acquitted them. Held, reversing the order of acquittal,
that it was competent to the Sessions Judge to alter the charge under section
227 of the Code of Criminal Procedure, 1882, and under section 238 to convict
the accused of the minor offence, which the evidence established. Held, also,
that the Code of Criminal Procedure was applicable as lexfori. Queen-
Empress v. Khotla Vma, I. L. R , 17 Bom., 369 (1892).
A Magistrate having, under section 253, Code of Criminal Procedure, 1882, Trial for minor
discharged a person accused of rioting, an order for further enquiry was made oDence-
by the Court of Session under section 437. Held, that the offence of rioting
not being proved, the Magistrate was competent to try the accused for the
offence of assault. Queen-Empress v. Papudu, I. L. R., 7 Mad., 454 (1884).
When a person is charged with an offence consisting of parts, a combina- Co«»victioii of an
tion of some only of which constitutes a complete minor offence, he may, aBiwcffic" l0"
under section 457 of the Code of Criminal Procedure, 1872, be convicted of charge,
the latter without being specifically charged, but only when the graver charge
gives notice of all the circumstances going to constitute the minor offence.
Hence, when a man charged with murder was convicted of abetment of it,
the High Court annulled the conviction and sentence, and ordered him to be
re-tried on the latter charge. Reg, v. Chand Nw; 11 Bom., H. C, 240 (1874)
239. When more persons than one are accused of the same be charged
offence or of different offences committed in the same transaction, jointly,
or when ona person is accused of committing any offence, and an
other of abetment of, or attempt tj commit such offence, they may
be charged and tried together or separately, as the Court thinks
fit ; and the provisions contained in the former part of this chapter
shall apply to all such charges.
Illustrations.
(a) A and B are accused of the same murder. A and B may be
charged and tried together for the . murder.
(6) A and B are accused of a robbery, in the course of which A
commits a murder with which B has nothing to do. A and B mt>y be
tried together on a charge, charging both of them with the robbery, and
A alone with the murder.
332 Proceedings in Prosecutions. [Chap. XIX.
(e) A and B are both charged with a theft, and B is charged with
two other thefts committed by him in the course of the same transaction.
A and B may be both tried together on a charge, charging both with
the one theft, and B alone with the two other thefts.
Riolinx, con " A fight between two parties cannot be treated as a " transaction " within
ter charges of- tlie meaning of section 239, Cade of Criminal Procedure, 1882. On the law us
father** tr"rt eontaine 1 in that se rtion, two parties cannot regularly be charged in the same
trial. The Queen- Empress v. Chandra Bhutya, I. L. R., 20 Cal., 538(1892).
.'oint enquiry— Upon general principles, every person is entitled, in the absence of excep
tion?dealt wh'h ''ona' authority conferrerl by the law to the contrary effect when required by
in one proceed- the judiciary either to forfeit bis liberty or to have bis liberty qualified, to
'"'"tnm'of"!!? 'na'8t t'm* n'8 fmso S'1B" ',e tried separately from the cases of other persons
(iBnw'Viwess^ry similarly circumstanced. In proceedings instituted under section 107 of the
before pawing Code of Criminal Procedure, 1882, against more persons than one, it is essential
order t»r »<" »- for the prosecution to establish what each individual implicated has done to
furnish a basis for the apprehension that be will commit a breach of the peace.
In holding such an enquiry it is improper to treat what is evidence against one
of such persons as evidence against all, without discriminating between the
cases of the various persons implicated. Queen-Empress v. Abdul Kndir, I. L
R., 9 All, 452 (1886).
Procedure when When four i ergons were accused of having given false evidence in the
lnore^thanône same proceeding, and the Sessions Judge, while professing to try each accused
Efwith' havi'nv" separately, heard the evidence of the witnesses only once, held, that this was
civen false ei-i- substantially trying the four persons together, and was an improper mode ef
i™%™ee!l'!e Procedure- Shiikk v. The Q,„en-Empre»», I. L. R., 10 Cal., 405
ir.g. (1884).
Conviction on Trial of 14 persons together charged with distinct offences (committing
trial of n per- public nuisances) under sections 2!)0 and 291 of the Penal Code : Held, an
iTn'wd^witir irregularity calculated to prejudice the accused, convictions quashed. PidisanH
distinct offen<-e«. Reddi v.' The Queen, I. L. K., 5 Mad., 20 (1882).
Reference to One of two prisoners, who were tried jointly before a Bench of Magis-
High Court trates on the complaint of the District Magistrate, appealed to the Sessions
'Sent of aU<Sn- Judge, and was acquitted. The District Magistrate thereupon, under sections
iierior Court— 296 and 297 of the Criminal Procedure Code, 1872 transmitte 1 the proceedings
hedfatriet "' 'n 'he case to the High Court, and asked that they might be quashed on the
* '" ground that there had been a failure of justice, llehl, that the Magistrate was
not competent to refer the proceedings of a superior Court to the High
Court. In re A . David, C Cal. L. R.. 245 (1880).
Withdrawal ot 2.40. When a charge containing more heads than one is
ch'Rntes'on con- framed against the same person, and when a conviction has been
advent" °'" nac^ 0,1 om> or in"rp of them, the c unplaimmt, or the officer conduct -
charfres. ing the prosecution, may, with the consent of the Court, with
draw the remaining charge or charges, or the Court of its own
accord may stay the inquiry into, or trial of, such charge or char
ges. Such withdrawal shall have the effect of an acquittal on such
charge or charges, unless the conviction be set aside, in which case
the said Court ( subject to the order of the Court setting aside the
conviction) may proceed with the inquiry into or trial of the charge
or charges so withdrawn.
Ss. 240-244] / Mjceeditigs in Prosecutions. 333
CHAPTEK XX.
Of the TniAL of Summons-casks uy Magistrates.
. The following procedure shall be observed by Magis- Procedure in
trates in the trial oi summons-cnses.
In the investigation of u complaint, which forms the subject of two dis- Joinder ol
tinct charges arising out of the same transaction, one of which is a summons Ji'/u^gj^flJ."^.
and the other a warrant-case, the procedure should be that prescribed for war- rsnt -caws,
rant-cases. Rajnaruin Koomrar v. I.ala Tamoli Rant, I. L. 11 Cal., 1)1
(1884).
242. When the accused appears or is brought before the Ma-
gistratc, the particulars of the offence of which he is accused shall stated,
be stated to him, and he shall bi asked if he h is any cause to show
why he should not be convicted : but it shall not be necess try to
frame a formal charge.
In an enquiry, such as is contemplated by seclion 20C of the Code of Grimi- Enquiry -
nal Procedure, 1872, it is necessary that the accused should have a clear state- JîJon -" "r
ment made to him : (1) that he is about to be put upon his trial ; and (2) what Dewati—Kazan-
the offence is of which he is charged. Qmere—whether a Detcan or a Kazanchi cni " Offence,
is an agent within the meaning of section 'JO of the Code ; and, if so, whether
he is bound to give any information except in the case of a suddeu or unnatural
death. In re Acharjee Lull, 3 Cal. L. B., 87 (1878).
243. If the accused admits that he has committed the S^jg™
offence of which he is accused, his admission shall be recorded truth of accusa-
as nearly as possible in the words used by him ; and, if he shows
no sufficient cause why he should not be convicted, the Magistrate
shall convict him accordingly.
244. (1) If the accused does not make such admission, the Procedure when
_,. ,'/, , i ., , • , •.. 1 no such adinis-
Magi.-trate sua II proceed to hear the complainant (it any i, and sion is made,
take all such evidence as may be produced in support of the prose
cution, and also to hear the accused aud take all such evidence as
he produces in his defence.
[2) The Magistrate may, if he thinks fit, ou the application
of the complainant or accused, issue process to compel the atten
dance of any witness or the production of auy document or other
thing.
(3) 'J he Magistrate may, before summoning any wituess on
such application, require that his reasonable expenses, incurred iu
attending fur the purposes of the trial, be deposited in Court.
Where a Sessions Judge gave it as a sufficient reason for the uou-pro- Witnesses—
duction of certain witnesses in Court on the part of the prosecution that they Duty of the pro-
had been examined by the committing Magistrate against the express wish of dufec.10" ° PrC'*
the police-officer in charge of the prosecution : Held, that that was not a valid
giound for the non-production of the witnesses in the Sessions Court. In
conducting a case for the prosecution, all the persons who are alleged or
334 Proceedings in Prosecutions. [Chap. XX.
and examined. Queen-Empress v. Ram Sahai Lall, I. L. B., 10 Cal., 1070
(1884).
Evidence-Duty It is primJ facie the duty of the prosecution to cull all the witnesses who
Inferences tobc Prove 'ne,r connection with the transections connected with the prosecution,
drawn on failure and who must be able to give important information. If such witnesses are
scs-Jtisdi1"6-" no' Cll"0fl w'thout sufficient reason being shown, the Court may properly
tion. draw an inference adverse to the prosecution. The only thing that can re
lieve the prosecutor from calling such witnesses, is the reasonable belief that,
if called, they would not speak the truth. No such corresponding inference
can be drawn against an accused. The Empress v. Dhunno Kazi, I. L. B.,
8 Cal., 121 (1881).
Acquittal. 245. (1) If the Magistrate upon taking the evidence refer
red to in section 244 and such further evidence (if any) as he may,
of his own motion, cause to be produced, and (if bethinks fit)
examining the accused, finds the accused not guilty, he shall record
an order of acquittal.
Sentence. (&) If ê finds tne accused guilty, he shall pass sentence
upon him according to law.
For form of warrant of commitment on a sentence of imprisonment or
fine if passed by a Magistrate, see schedule V, No. 29.
Vexatious com- The fact that the accused has been tried and acquitted is no bar to the
plaint—Ac- award of compensation under section 20'J of the Code of Criminal Procedure,
^nmiio^°m' 1872- Number 4»»K I. L. B., 5 Mad., 381 (1882).
Pindina; not li- 246. A Magistrate may, under section 243 or section 245,
plaint oty C°m" convic^ the accused of any offence triable under this chapter which
summons, from the facts admitted or proved he appears to have committed,
whatever may be the nature of the complaint or summons.
Non-appearance 247. If the summons has been issued on complaint, and
of complainant. Up0n ê <]ay appointed for the appearance of the accused, or any
day subsequent thereto to which the hearing may be adjourned,
the complainant does not appear, the Magistrate shall, notwith
standing anything hereinbefore contained, acquit the accused,
unless for some reason he thinks proper to adjourn the hearing of
the case to some other day :
Provided that, where the complainant is a public servant and
his personal attendance is not required, the Magistrate may dis
pense with his attendance, and proceed with the case.
Absence A Magistrate, before acquitting a person under the provisions of section
case called for^ 247 of the Code of Criminal Procedure, 1882, is not bound to wait until the
Subsequent an- Court is about to close for the day. Kuttiyali v. Pari Makri, I. L. B., 7 Mad.,
Kday. °n 356 (1884).
Complainant— A second-class Magistrate, having held that n primA facie case had been
Acquittal— established against the accused iu a case of mischief, adjourned the trial to en-
trictM>*Mrote* a**'e tne accused to adduce evidence. On the day to which the trial was ad-
journed, the complainant not being present, the Magistrate acquitted the
Ss 245-248] Proceedings in Prosecutions. 335
accused under section 247 of the Code of Criminal Procedure, 1882. The Dis-
. trict Magistrate entertained an appeal from this order under section 423 (a) of
the Code, reversed it, and directed a rehearing, on the ground that the complain
ant and his vakil had appeared before the Court shortly after the case had been
dismissed by the second-class Magistrate. Held, that the order of the District
Magistrate was illegal. Ranganaini Aynanaar v. Nar'tsimbulu Nijak, I. L.
U., 7 Mad., 213 (1883).
A case having been transferre 1 from the file of one Magistrate to that Dismissal of
of another was, on the day fixed, called on for hearing, but, the complainant A^^ceofcom-
not appearing, the case was dismissed under section 247 of the Code of Cri- piainant-"Pre-
mirial Procedure, 1882 It appeared that the complainant and his witnesses, ■*»' in Court'-
though not in attendance in the Magistrate's Court, were present in another
Court in the same Court-house, being under the impression that his case had
been transferred to the Magistrate of that Court. Held, that the complainant
having been present in the Court-house, the provisions of section 247 of the
Code had been improperly applied. In re Romanath Bal v. Behari Bag Bagdi,
13 Cal. L. B., 303 (1883).
Where a complainant is required to pay fees for summoning witnesses Complainant,
under section 361 of the Code of Criminal Procedure, 1872, and fails to do so,
the Magistrate must deal with the case on the evidence before him, and is not
justified in dismissing the complaint under section 205 of that Code. In re
Korapidu v. Monappa, I. L. R., 5 Mad., 160 (1882).
In cases of contempt of the lawful authority of a public servant, the com- Complainant—
plainant referred to in section 210 of the Code of Criminal Procedure, 1872, is Sanction,
the public servant whose authority has been resisted, and without whose
sanction no criminal proceedings can be instituted against the offender, and
not the person injured by the resistance. In re Mime Alt Adam, I. L. R ,
2 Bom., 653 (1878).
248. If a complainant, at any time before a final order is Withdrawal of

passed in any case under this chapter, satisfies the Magistrate comi,,"1,lt-
that there are sufficient grounds for permitting him to withdraw
his complaint, the Magistrate may permit him to withdraw the
same, and shall thereupon acquit the accused.
Where the offence charged is a " warrant" and not a " 8ummons"-case, a Withdrawal of
Magistrate ought to proceed with the enquiry or trial in spite of the with- ""wjJmnt-cnso
drawal of the complainant, if he finds the elements of an offence on the facts not a irroinid
set forth in the complaint. In re Gfantth Narayan Sathe, I. L. R., 13 Bom., ,or dismissal.
600 (1889).
In cases'"of contempt of the lawful authority of a public servant, the Sanction-Corn-
complainant referred to in section 210 of the Co le of Criminal Procedure, Pi"''""1*-
1872, is the public servant whose authority has been resisted, and without
whose sanction no criminal proceedings can be instituted against the offender,
and not the person injured by the resistance In re Muse Alt Adam, I. L. R.,
2 Bom., 653 (1878).
Where a Deputy Magistrate, under section 210 of the Criminal Procedure Revival of com-
Code, 1872, permitted a complainant to withdraw a complaint which was not f,1™,1"' "'j*^'9"
considered heinous, and discharged the accused, and the District Magistrate oVrion.
revived the case against the accused at the instance of the Commissioner :
Held, that the Magistrate had no jurisdiction to act as he did. The Queen v.
Z'dioond Huq, 25 W. R., 64 (1876).
336 Proceedings in Prosecutions [Chap. XX.
proceedhiKs'11 449« In any case instituted otherwise than upon complaint,

when no 10m- a Presidency Magistrate, a Magistrate of the first class, or, with
p ■mailt. tjje previous sanction of the District Magistrate, any other Magis
trate, may, for reasons to bo recorded by him, stop the proceedings
at any stage without pronouncing any judgment either of acquittal
or conviction, and may thereupon release the accused.
tricolous accusations in summons ami wurranl-cases.

°J. 250. (ij If, in any case instituted by complaint a? defined
ciuntions in this Code, or upon information given to a police-officer or to a
Magistrate, a person is accused before a Magistrate of any offence
triable by a Magistrate, and the Magistrate by whom the case is
heard discharges or acquits the accused and is satisfied that the ac
cusation against him was frivolous or vexatious, the Magistrate
may, in his discretion, by his order of discharge or acquittal, direct
the person upon whose complaint or information the accusation
was made to pay to the accused, or to each of the accused where
there are more than one, sucli compensation not exceeding fifty
rupees, as the Magistrate thinks fit :
Provided that, before making any such direction, the Magis
trate shall—
(a) record and consider any objection which the complainant
or informant may urge against the making of the direc
tion, and,
(b) if the Magistrate directs any compensation to be paid,
state in wntiug, in his order of discharge or acquittal, his
reasons for awarding the compensation.
(2) Compensation of which a Magistrate has ordered pay
ment under sub-section (/) shall be recoverable as if it were a fine:
Provided that, if it cannot be recovered, the imprisonment to
be awarded shall be simple, and for such term, not exceeding
thirty days, as the Magistrate directs.
{3) A complainant or informant who has been ordered under
sub-section (1 ) by a Magistrate of the second or third class to pay
compensation to an accused person may appeal from the order, in
so far as the order relates to the payment of the compensation, as
if such complainant or informant had been convicted on a trial held
by such Magistrate.
(4) Where an order for payment of compensation to an ac
cused person is made in a case which is subject to appeal under
sub-section (3), the compensation shall not be paid to him before
the period allowed for the presentation of the appeal has elapsed,
- or, if an appeal is presented, before the appeal has been decided.
Ss. 249-250.] Proceedings in Prosecutions. 336 a
(5) At the time of awarding compensation in any subsequent

civil suit relating to the same matter, the Court shall take into
account any compensation paid or recovered under this section.
The accused was charged under section 352 and section 879 of the Compensation
to accused-
Penal Code, but convicted under section 352, being discharged under ^°"^''(>t0 ,li9'
section 379. The Magistrate ordered the complainant to pay compen
sation for bringing a frivolous and vexatious charge under section 560
of the Code of Criminal Procedure, 1882. The order for paying com
pensation was set aside on the ground that ^section 5G0 could only
operate when there was a complete discharge or acquittal. Mukti Btvea
v. Jholu Santra, I. L. R., 24 Cal., 53 (1896).
It is not competent
r to a Court in awardingor
compensation under sec- Compensation
for frivolous
tion 560 of the Code of Criminal Procedure, 1882, against a complainant »"'' yexatioiw
1 complaint— Or-
for making a frivolous and vexatious complaint, to order at the same *2tivo /orim^-u
time that in default of payment of the compensation against whom the »oument.
order is made suffer imprisonment. Manjhli v. Manik Chand, I. L. R.,
19 All., 73 (1896).
A complaint of the wrongful seizure of cattle is not a complaint of veiatim" Ioni
an offence within the meaning of the Code of Criminal Procedure, n,nlnt-
(1882). Consequently on a dismissal of such a complaint it is not
competent to a Court to act under section 560 of the Code and award
compensation to the persons against whom the complaint is made.
Meghai v. Sheobhik, I. L. R., 18 All., 353 (1896).
Although compensation awarded under section 560 of the Code 0rder for \my>r\.
of Criminal Procedure, 1882, is recoverable as if it were a fine, it is not fault or pay-
i, . . , . ment of cdm-
corapetent to a Magistrate immediately upon ordering a complainant to pensation.
pay compensation to direct that he should in default bo sentenced to
imprisonment. Queeu-Empress v. Punnn, I. L. R., 18 All., 96 (1895).
The operation of section 560 of the Code of Criminal Procedure, comnensation_
1882, is restricted to cases instituted by " complaint " as defined in the nââuitol"'
Code or upon information given to a police-officer or a Magistrate, and compensa'tion.
consequently that section has no application to a case instituted on a
police report or on information given by a police-officer. Qucere.—
Whether under the section a Magistrate has power to make an order
for imprisonment in default of payment of the compensation awarded ?
A police-constable arrested a carter and charged him before a Magistrate
with an offence under section 34 of Act V of 1861. The Magistrate
acquitted the accused and directed, under section SCO of the Code, that
the police-constable should pay him Rs, 20 as compensation or undergo
Proceedings in Prosecutions, [Ch. XX
simple imprisonment for a fortnight. Held, that as the section had

no application to the case, the order was illegal, being made without
jurisdiction. Held, further, that even if the Magistrate had power under
the Code to pass an order for imprisonment in default of payment of
compensation awarded under section 560, it was illegal to pass such
an order until some attempt had been made to levy the amount in the
manner provided by section 386 for the levying of a fine. Ramjeevan
Koori v. Durga Charan Sadhu Khan, I. L. R., 21 Cal., 979 (1894).
Compensation The award of compensation under section 560 of the Code of Cri-
veiatious com- minal Procedure, 1882, must be in respect of a frivolous and vexatious
plaint—Such . - » • , . , ,
compensation accusation of an offence or which the accused person has been discharged
inapplicable to
aunder
complaint
section or acquitted.
* That section is not applicable
*r to an application
1r made to a
no ot the Code. Magistrate solely with a view to his taking proceedings under section 110
of the Code. The Queen-Empress v. Lakhpat, I.L.R., 15 All., 865 (1 893).
Comptiin^nt—~ Where a Civil Court peon was sent by a Munsif to attach certain
Complaint. property, and on the peon reporting that he had been obstructed in
making the attachment, the Munsif sent the case to the Deputy
Magistrate for investigation and trial, and the Deputy Magistrate sum
marily tried the accused under section 186 of the Penal Code, dismissed
the case, and awarded compensation of Rs. 20 to the accused. Held, that
the award of compensation was illegal : the peon, though nominally the
informant in the case, was not the real complainant, nor could the pro
ceedings properly be said to have been instituted before the Deputy
Magistrate on his information. Bharut Chunder Nath v. Jabed Ali
Biswas, I. L. R., 20 Cal., 481 (1892).
" Frivolous or An order granting compensation to an accused under section 590,
ptoV-Com?™' clause (1) of the Code of Criminal Procedure, 1882, must be made by
pron 10" the Magistrate who tries the case. It is not competent to a Magistrate
who has heard nothing of the case except the complainant's pleas against
the direction to pay compensation to make the order for compensation.
In reMahadeo Tewari, W. N., N.-W. P., 1892, p. 58.
Vexatious com-
plaint—Cora- The rprovisions of section 250 of the Code of Criminal Procedure,
pensation. 1882, may be applied in summons-cases whether tried summarily or
not. Queen-Empress v. Basavu, I. L. R., 11 Mad., 142 (1887).
Compensation— A complaint was made against certain persons under section 20
Cattle-Trespass 1
Fahie complaint of tlie Cattle-Trespass Act of 1871, charging them with having
illegally seized and detained the complainant's cattle. The Assistant
Magistrate who heard the complaint found it to be false, and he
ordered the complainant to pay Rs. 20 compensation to the accused, and
Ss. 249-250.] Proceedings in Prosecutions. 336 c
in default to suffer simple imprisonment for 21 days. On appli

cation to the Bigh Court,—held, that the order was illegal, and must
be set aside. In re Kala Chand, I. L. R., 13 Cal., 804 (1886).
In a case instituted upon complaint made under section 20 of the J}'*j{le"^^™
Cattle-Trespass Act, the Magistrate acquitted the accused, and, being ^8c|*tt,leJtê,"
of opinion that the complaint was vexatious, directed the complainant ™ t^meaninV
to pay compensation to the accused as under section 250 of the Code on'miiSTproco-
of Criminal Procedure, 1882. field, that the act complained of was dure
not an offence within the meaning of the Code of Criminal Procedure,
and that the order awarding compensation was illegal. Kottalanada
v. Muthaya, I. L. R., 9 Mad., 374 (1886).
Section 250 of the Criminal Procedure Code, 1882, authorises Vexatious com-
. . , , , . plaint—Acquit-
tne payment ot compensation in cases where the accused has been ac- tal—Compensa-
quitted, under section 245 of the Code, after the whole evidence in the
case has been recorded. Queen-Empress v. Pandu ralad Qopala, I.
L. R., 10 B>m., 199 (1886).
The illegal seizure of cattle under colour of the Cattle-Trespass Act, FriTOi0,„ com.
1871, not having been constituted an offence under that Actor other- J^mMon—Cat-
wise, an award of compensation under section 250 of the Code of Crimi- Actrrespi,M
nal Procedure, 1882, to the accused on such complaint is illegal. Pitchi
v. Ankappa, I. L. R., 9 Mad., 102 (1885).
Where the complaint, and the proof adduced in support thereof > complaint of
showed that the accused rperson, if °sruilty' at all, were guilty
5 J of offences mon»for»«-
sault-Dischiwe
not triable under Chapter
r XVI of the Code of Criminal Procedure ' -Oompenaa-
tion.
1872, and the Magistrate issued a summons to answer a charge for as
sault under section 352 of the Penal Code, and, after examining the
witnesses for the complainant, discharged the accused, and awarded com
pensation to the accused under section 209 of the Code : Held, that the
order awarding compensation was illegal. Soma v. The Queen, I. L-
R., 6 Mad., 316 (1883).
The fact that the accused has been tried and acquitted is no bar to Vexatious com
plaint -Aoquit-
the award of compensation under section 209 of the Code of Criminal tai-compen«»-
Procedure, 1872. Number v. Ambu, I. L. R., 5 Mad., 381 (1882). t <"1'
An order for compensation against a complainant may be made on orde' of ac-
an order of acquittal under section 211 of the Criminal Procedure Code' pensntion to"
accused.
1872. Mona Sheikh v. Ihean Bardhan, I. L. R., 6 Cal., 581 (1881).
A karkun on the establishment of a Civil Court, entrusted with Award of com
pensation—
the execution of a writ, reported to the Court that a particular person Complainant,
obstructed him in attaching property as commanded by the writ j
336 d Proceedings in Prosecutions. [Ch. XX
and a report was thereupon made by the Court to a Magistrate, with a

view to proceedings being taken against the obstructor. The Magis
trate acquitted the accused, and ordered the karltun to pay the accused
compensation under section 209 of the Criminal Procedure Code, 1872.
Held, that such last mentioned order was wrong, the ka-kun not being
a complainant within the meaning of section 209 of the Code. In such
a case as the above, the Subordinate Judge should be regarded as the
complainant, and he, having acted judicially, was not liable to the
penalty provided in section 209 of the Code. In re Keshae Lukshmnn,
I. L R., 1 Bom , 175 (.187G).
Compensation A Magistrate, in making an order for compensation under section
priapniuciit. m 209, Code of Criminal Procedure, 1872, is bound, if the amount be not
paid, to proceed to the recovery of it by distress and sale of the move
ables of the person ordered to pay ; but if such person admits he has no
goods, and thereby waives the right to have the amount levied by dis
tress, the Magistrate may proceed to imprison him in the civil jail.
The warrant of distress cannot have currency simultaneously with the
imprisonment. Reference t<> the High Court in re Bisheshwar shaka v.
Bishwumbhtu Sircar, 23 W. R., 64 (1875).
Compensation—
Charge-Acquit- Where a formal charge
, has been drawn up, r and the accused, tried
and acquitted, the acquittal should be one under section 220, Code of
Criminal Procedure, 1872, and not under section 211, and therefore no
compensation can be awarded to the accused under section 209 in such a
case. Radhanath Panja v. Wooma Churn Chowdhry, 22 W. R., 12 (1874).
Compensation- A Magistrate having jurisdiction is authorised by law in making
Perjury. an order under section 270, Code of Criminal Procedure, 1801, directing
the complainant to make amends to the accused, notwithstanding that
the complainant is to take his trial for perjury. Reference to High Court
in re Queen v. Roopun Rae, 15 W. R., 9 (1871).
" Frivolous or Under section 270 of the Criminal Procedure Code, 1861, a Magis-
vexatiouH "com- tralc
plaint—Com- ..... , . . as mvolous
dismissing a complaint -. i , award, a
or vexatious can only
sum not exceeding Rs. 50 to the accused by way of co-nprwalion, aud
cannot impose it by way of fine, nor can he directly sentence the com
plainant to imprisonment in default of payment. The Qa en v. Gopal,
N.-W. P., H. C, 1870, p. 430.
Frivolous or Magistrates have no power to award fines to accused as compcn-
vexatious com- sation for frivolous and vexatious
plalnt-Compen- , .
prosecutions, except .in cases in winch
. .
sation. .
a summons on complaint shall ordinarily issue. Iieg. v. letlappi, 1
Bom. H. C, 181 (1864).
as. 251-253.] Proceedings in Prosecutions. 337
CHAPTEU XXI.
Of the Tmal of Warrant-cases by Magistrates.
211.■ I The
. . ,following ° procedure shall be observed by
J Magis- Procedurefuses
m
tratcs in the trial 01r. warrant-cases.
1, 0 warrant
In the investigation of a complaint, which forms the subject of two dis- Summons and
tinct charges arising out of tlie same transaction, one of which is a summons p^û^''.''04-
and the other a warrant-case, the procedure should he that prescribed for war
rant-cases. Rijnamin Koomoir v. Lain Tumoli Raul, 1. L. K., 11 Cal., 91
(1884).
252. (/) When the accused appears or is brought bjfore a Evidence for
Magistrate, such Magistrate shall procjed t> hear the com- Pro"ecnt,°"'
plainant (it' any) and tike all such evidence as may be produced in
support of the prosecution.
(2) The Magistrate shall ascertain, from the complaioant or

otherwise, the names of any persons likely to be acquainted with
the facts of the case and to be able to give evidence for the prose
cution, and shall summon t > give evidence before himself such
of them as he thinks necessary.
When an accuse 1 pars >n is Brat brought before a Magistrate, and a re- Reuiimd-Ne-
mand is require 1 by the prosecutor, it is ordinarily sufficient to show by tlie ^trideaee
evidence of a police-officer that the police are in possession of information, iwfore refusing
believed to be reliable, tint the accused has committe \ an offence ; but when bail-
the accused is again brought up after rem in 1, and a further remand is needed,
the Magistrate in refusing bail, and with each remand the necessity for pro
duction of evidence of guilt becomes stronger. Poiuimami Clietti v. The
Qusen, L L. U., G Mad., 69 (1882).
It fa primA facie the duty of the prosecution to call all the witnesses Evidence—
who prove their connection with the transactions connected with the prose- ^,"5*,° idJJJ?0'
cation, and who must be able to give important information. If such wit- ence to be
nesses are not called without sufficient reason being shown, the Court may J|™Y" rai/w'it
properly draw an inference adverse to the prosecution. The only thing that nesses.
cau relieve the prosecutor from calling such witnesses, is the reasonable
belief that, if called, they would not speak the truth. No such corresponding
inference can be drawn against an accuse 1. The EmpreM v. Dhuin-> Kazi,
I. L R., 8 Cal., 121 (1881).
±53. 0) tf, upon taking all the evidence referred to in

section 252, and m iking such examination if any) of the accused
as the Magistrate thinks necessary, he finds that no case ag imst
the accused has l>eeu made out which, if utwe butted, would war
rant his conviction, the Magistrate shall discharge him.
33» Proceedings in Prosecutions fCu. XXI .
(2) Nothing in this section shall be deemed to prevent a Ma

gistrate from discharging the accused at any previous stage of
the case if, for reasons to be recorded by sucn Magistrate, he
considers the charge to be groundless.
Dismissal of A Magistrate is not competent to pass an order of dismissal or dis
complaint— charge in consequence of the absence of the complainant in warrant-cases
Discharge of not coming within section 259 of the Code of Criminal Procedure, 1882,
nccused. except in cases coming within the last clause of section 253 of the same
Code. Govinda Dass v. Dulall Dans, I. L. B., 10 Cal., 67 (1883).
Discharge of A Magistrate has no power to remand a criminal case to a subordinate
accused—Sub Magistrate for re-trial after the case has once been dismissed ; the course open
sequent order. to him are—(1) to accept a fresh complaint supported by fresh evidence
which was not before the Court when the cas9 was dismissed ; or (2) if
there be no additional evidence to be procured, to report the case for the
orders of the High Court under section 296 of the Code of Criminal Procedure,
1872. In re Dijahur Dutl, I. L. B., 4 Cal., 617 (1879).
Discharge of Before a Magistrate discharges an accused person under section 215 of the
accused without Code of Criminal Procedure, 1872, he is bound, under that section, to examine
examining all all the witnesses name:! for the prosecution. Empress of India v. Ka*hi,
witnesses.
I L. B., 2 All., 447 (1879).
Discharge of A Magistrate is bound, before he discharges an accuse 1 person under sec
accused. tion 215 of the Code of Criminal Procedure, 1872, to examine all the witnesses,
and should not refuse to examine witnesses simply because their evidence
will be to the same effect as that already taken for the prosecution. The Em
press v. Himatulla, I. L. B., 3 Cal., 389 (1878).
Order of dis A Magistrate is not competent to discharge the accused in a warrant-case
charge in origi and order the complainant to be prosecuted for making a false complaint, un
nal complaint - til he has examined all the witnesses cited by the complainant. In re Gannoo
When prosecu
tion for false Singh, 2 Cal, L. B., 389 (1878).
complaint may
be instituted. In a case before the Joint Magistrate, iu which the prosecution was closed
Discharge— Re and the accused discharged under section 215 of the Code of Criminal Proce
vival of case— dure, 1872, the Magistrate, on a petition presented to him by the prosecutor,
Complaint—Re passed an order of remand directing the Joint Magistrate to proceed with the
mand.
case at the stage at which he left it. Held, that the discharge not being
equivalent to an acquittal, the Magistrate might have received a complaint
if he saw sufficient reason for doing so, and might have made it over to a sub
ordinate officer to be heard, but he had no power to make the order of remand
which he made. KUtoram Mobara v. Anis, 20 W. B. , 47 (1873).
Charge to be 254. If, when such evidence and exainimt'on have been
framed when
offence appears taken and made, or at any previous stage <>f the case, the Magis
proved. trate is of opinion that there is ground for presuming that the
accused has committed an offence triable umler this chapter, which
such Magistrate is competent to try, iind which in his opinion,
could be adequately punished by him he shall frame in writing a
charge against the accused.
For forms oj charges, tee schedule V, No. 28.
Omission to pre A Magistrate tried and acquitted a person accused of an offence without
pare charge— preparing in writing a charge against him. Such omission did not occasion
Acquittnl-Dis- any failure of justice. Held, with reference to section 216 of the Code of
of'pr^secution! Criminal Procedure, 1872, Explanation I, that such omission did not invalidate
the order of acquittal of such person, and render such order equivalent to an
order of discharge ; and such order was a har to the revival of the prosecution
of such person for the same offence. Empress of India v. Gurdu, I. L. R., 3
All., 129 (1880).
255> (i) The charge shall then be read and explained to piea.
the accused, and he shall be asked whether he is guilty or has any
defence to make.
(2) If the accused pleads guilty, the Magistrate shall record
the plea, and may in his discretion convict him thereon.
A prisoner, charged under section 211 of the Penal Code with having p]M 0f Kiiilty—
brought a false charge with intent to injure, by accusing A of having caused I|al»e cliar*e-
the death of a person hy doing a rash or negligent act not amounting to cul- fS^ptaSjnS
pable homicide under section 304A, stated at the trial that the original com- charge,
plaint made by him was false, and that he m ide it unthinkingly. The Ses
sions Judge treated his statement as a plea of guilty, and sentenced the pri
soner to rigorous imprisonment. No record of the prisoner's plea, as required
by section 237 of the Criminal Procedure Code, 1872, appeared on the pro
ceedings, nor did it appear that the charge had been explained as well as
read to the prisoner, and the Judge considered that the original complaint did
not amount to a false charge of an offence under section 304A. Held, that
the conviction was bad. The Empress v. Gopal Dhan.uk, I. L. B., 7 Cal., 96
(1881).
When a person accused of murder acknowledged having struck his victim, Confession of
but repudiated the intention to murder, and the Sessions Judge accepted this prisoner—
acknowledgment
dence. Held, thatasthea Judge
plea ofwas
guilty,
boundand omittedtheto statement
to accept record any further
of the evi-
ac- ^"^JC"*
^ S"T"
m'
cased as a whole, if it was taken as a confession at all. Conviction for mur
der accordingly set aside and new trial ordered. The Queen v. Sonaoollah,
25 W. R., 23 (1876).
256 (/) If the accused refuses to plead, or does not plead, r>feiJee
or claims to be tried, he shall be required to state whether he
wishes to cross-examine any, and, if so, which, of the witnesses for
the prosecution whose evidence has been taken If he says he
does so wish, the witnesses named by him shall be re-called, and,
after cross-examination* and re-examination t (if any), they shall
be discharged. The evidence of any remaining witnesses for the
prosecution shall next be taken, and, after cross-examination and
re-examination (if any), they also shall be discharged. The accus
ed shall then be called upon to enter upon his defence and produce
his evidence.
(2) If the accused puts in any written statement, the Magis
trate shall file it with the record.
Note.— The provisions of this section have been materially changed from
that of the Code of 18S2. The decisions under the old Cod*, therefore, have no
bearing on the provisions of this section. A few of the later rulings under the
old Code have, however, been given.
• The examination of a witness by the adverse party.
t The examination of a witness, subseqnent to cross-cx iininnlion, by the party who
vailed him.
34° Proceedings in Prosecutions. [Chap. XXI.
[When they |"143 (Evidence Act). Leading* questions may be asked in cross-
may be asked.] examination.]
• -i
[Cross-eiamina- [145 (Evidence Act). A witness may be cross-examined as to

"ousa8t«te-pre Prev'ou8 statements made by him in writing or reduced into writing, and
menta in writ- relevant to matters in question, without such writing being shown to
ing'-1 him, or being proved ; but, it if is intended to contradict him by the
writing, his attention must, before the writing can be proved, be called
to those parts of it which are to be used for the purpose of contradict
ing him.]
[Quoyions^ [146 (Evidence Act). When a witness is cross-examined, he may,
examinatkm.* " in addition to the questions hereinbefore referred to, be asked any
question which tend—
(1) to test his veracity ;
(2) to discover who he is, and what is his position in life, or
(8) to shake his credit by injuring his character, although the
answer to such questions might tend directly or indirectly
to criminate him, or might expose him to a penalty or for
feiture.]
Witness— An accused person has the right to cross-examine the witnesses for the
Examination of prosecution after their examination at the Judicial enquiry before the Magistrate
witnesses — previous to commitment. The fact that the Criminal Procedure Code of 1872
Crow-exami
nation— contained an express provision to that effect, which was omitted in the Code
Bight ot accus of 1882, together with the provisions of sections 210and 256 of the latter Code,
ed to cross-ex
amine wit must not be taken to show an intention on the part of the Legislature to deprive
nesses for the an accused of that right. The express provision in the Code of 1872 was proba
prosecution bly thought by the Legislature, when framing theCode of 1882, as being redund
before commit
ment - Record ant, seeing that the Evidence Act of 1872, which was passed at the same time
ing statement as the Criminal Procedure Code of 1872, made sufficient provision on the sub
of accused by
Magistrate. ject. Section 256, moreover, does not prohibit cross-examination before a
charge is framed ; it permits a further cross-examination expressly directed to
the case found and embodied in the charge, and would enable an accused
person, if he has reserved his cross-examination, to exercise his right at that
time subject to a discretion given to the Magistrate by section 257. Where
depositions of witnesses for the prosecution before the Magistrate previous to
commitment were taken without any cross-examination by the accused being
allowed, it was held that such depositions were improperly treated as evidence
in the Sessions Court, as they had not been " duly taken " in the presence of
the accused within the meaning of section 288 of the Code. Where an ac
cused, a Manipuri, was examined before the Magistrate through an interpreter,
who obtained his answers in Manipuri, and they were recorded in that lang
uage, and the interpreter translated them into Bengali, and they were recorded
by the Magistrate in English, and the statement in English and that in Mani
puri were found to differ : Held, that the statement recorded in Manipuri must
be taken to be the record in the case. Had the Manipuri statement not been
made, the Magistrate by recording the statement in English would not have
strictly complied with the spirit and intention of section 364 of the Criminal
Procedure Code, 1882, though the record in English might not necessarily
have been inadmissible in evidence. Qwtn-Emprets v. Sagal Samba Sajao, I.
L. B., 21 Cal., 642 (1893).
' Any question suggesting the answer which the person putting it wishes or expects
to receive—section HI.
S. 256.] Proceedings in Prosecutions. 34 1
There is, under section 257 of the Criminal Procedure Code, 1882, no witnesses-
absolute right of cross-examination which would enable the accused to recall Recalling wit-
and cross-examine the witnesses for the prosecution, no matter how completely {[[rther cross-
and fully they have already been cross-examined. Where the witnesses for examination
the prosecution were fully cross-examined and a charge framed against the |fyidecnlJ.*rs8_
accused, and after an adjournment for ten days the witnesses for the defence
were examined and cross-examined, and on the day on which the judgment
was to be delivered, an application under section 257 of the Code of Criminal
Procedure, 1882, was made on behalf of the accused asking that process should
issue for the witnesses for the prosecution to be recalled and further cross-
examined : Held, that if the Magistrate was of opinion that the application
was made with the intention and for the purpose of vexation or delay, or for
defeating the ends of justice, he was right in refusing the application. It lies
upon the party, who thinks himself aggrieved, to show that the ends of
justice have been in some way frustrated in consequence of the refusal to
recall the witnesses. It is necessary to be very careful that persons on their
trial should not be prejudiced ; but it is also necessary, on the other hand, to
see that proceedings in the Criminal Courts are not hampered in a needlessly
carping and litigious spirit, losing sight of the main purpose of those proceed
ings, and giving over-attention to matter of mere form. NillcaiUa Singh v.
The Queen-Empress, I. L. B., 20 Cal., 469 (1892).
Reading sections 217 and 218 of the Criminal Procedure Code, 1882, Recalling wit-
together, it appears that, if an accused person desires to rocall and cross-exa- nesses-Time
mine the witnesses for the prosecution, the time at which he should express '°r8e^50t SL^}'
such desire is when the chargo is read over to him, and he is called upon to witnesses^r
make his defence ; and although it is in the discretion of the Magistrate to prosecution,
recall the witnesses at a subsequent stage of the case, the accused has 110 right
to insist upon the witnesses being recalled. Faiz Ali v. Koromd, I. L. B., 7
Cal., 28 (1881).
In the trial of warrant-oases the accusod may, after the chargo is drawn Trial of warrant-
up, and the witnesses for the defence have been examined, recall and cross- case—Eight
examine the witnesses for the prosecution. Talluri Venkayya v. The Queen, rlxMv^xnmset
I. L. B., 4 Mad., 130 (1881). of prosecution.
To ask for a bribe is an attempt to obtain one ; and a bribe may be asked Illegal gratifi-
for as effectually in implicit as in explicit terms. Where, therefore, B, who Reused ^wrsoa'
was employed as a clerk in the Pensiou Department, in an interview with A, to cross-exa-
who was an applicant for a pension, after referring to his own influonce in "''"c^torTl'1"
that Depaitment, and instancing two cases in which, by that influence, in- prosecution.'0
creased pension had been obtained, proceeded to intimate that anything might
be effected by " karrawai " and, on the overture being rejected, concluded by
declaring that A would rue and repent the rejection of it, held, that the
offence of attempting to obtain a bribe was consummated. The charge having
been read to the accused person, he stated his defence to the same, upon
which the Magistrate, the witnesses for the prosecution being in attendance,
called upon the accused to cross-examine them. The accused refused to do so
until he had examined the witnesses for the defence, who were not in atten
dance. The Magistrate then discharged the witnesses for prosecution and
adjourned the trial for the production of the witnesses for the defence. Held,
per Spankie, J., that the accused was not entitled to have the witnesses for
the prosecution summoned, in order that they might be cross-examined by
the accused on the date iixed for the examination of the witnesses for the
defence. Held, also, per Spankie, J., that the Magistrate was empowered to
record both oral and documentary evidence after the witnesses for the defence
had been examined. Empress of India v. Baldeo Sahai, I. L. B., 2 AIL. 253
(1879).
342 Proceedings in Prosecutions. [Chap. XXI,
Process tor 257. (/) If the accused, afte' he has entered upon his
du™mn'of ew- defence, applies to the Magistrate to issue any process for compel-
f»™ce of 'He- ling the attendance of any witness for the purpose of examination
rmed. or cross-examination, or the production of any document or other
thing, the Magistrate shall issue such process unless he considers
that such applica'ion should be refused on the ground that it is
made for tbe purpose of vexation or delay or for defeating the
ends of justice. Such ground shall be recorded by him in writing :
Provided that, when the accused has cross-examined or had

the opportunity of cross-examining any witness after the charge is
framed, the attendance of such witness shall not be compelled
under this- section, unless the Magistrate is satisfied that it is ne
cessary for the purposes of justice.
(2) The Magistrate may, before summoning any witness on

such application, require that his reasonable expenses incurred in
attending for the purposes of the trial be deposited in Court
[Order of eiami- [138 (Evidence Act). Witnesses shall be first cxamined-in-chief,
nukxn-j then (if the adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts,

but the cross-examination need not be confined to the facts to which the
witness testified on his examination-in-chief.
The re-examination shall be directed to the explanation of matters
referred to in cross-examination ; and if new matter is, by permission of
the Court, introduced in re-examination, the adverse party may further
cross-examine upon that matter.]
nation"^?"per- t139 (Evidence Act). A person summoned to produce a document

•on called to does not become a witness by the mere fact that he produces it, and
mei?tUjea<locu" cannot be cross-examined unless and until he is called as a witness.]
Summoning and Certain witnesses who, had been summoned for the accused failed to appear
wrtnesses6 on ^ne °^ '"a'> anf' 'ne Deputy Magistrate refused to adjourn the hearing, or
Compelling at- to issue fresh processes for the attendance of the defendant's witnesses, on
tendance of the ground that they were all friends of the accused, who would come
witnesses. ^ (jourt if the accused desired it. The prisoners were convicted. Held, the
conviction must be set aside, the Magistrate having once granted processes
he was bound to assist the accused in enforcing the attendance of his wit
nesses. Queen-Empreu v. Dhananjoi Chaudhuri, I. L. B., 10 Cal., 931 (1884).
Witness for de- On the 30th March, 1881, an accused person on his trial before a Magis-
toaltend-Re- trate. a8kecl that a certnin witness might be summoned on his behalf. The
fusal to re- Magistrate ordered a summon to be issued for the attendance of such witness
summon. on the 18th April, to which day the further hearing of the case was
adjourned. There was some delay in the service of the summons, and such
witness did not attend on that day. The Magistrate refused an application by
the accused for the issue of a second summons to such witness with reference
Ss 257-259.] Proceedings in Prosecutions. 343
to section 359 of the Code of Criminal Procedure, 1872, on the ground that
such application was not made in " good faith." Held, that the provisions of
section 359 of the Code were clearly inapplicable to the case as it stood
before the Magistrate on the 18th April, and he was bound to make a
further attempt—the first attempt seemed to have been nominal merely—to
secure the attendance of the absent witness. Empress of India v. Rukn-ud-
din, I. L.R., 4 AIL, 53 (1881).
Where the Magistrate trying an offence rejected an application by the Refusal of Man-
accused person that a certain person might be examined in his behalf either ô^tness""1"
in Court or by commission, without recording his reasons for refusing to named by ac-
summon such person as required by section 362 of the Criminal Procedure cused.
Code, 1872, held, that the conviction of the accused person must be set aside
anil the case be re-opened by such Magistrate, and the application by the
accused for the examination of such person be disposed of according to law.
In re Sat Narain Singh, I. L. B., 3 All., 392 (1881).
In a prosecution, the case on both sides having been closed, the Magis- Refusal to sum-
rate issued a summon to a witness to give evidence, whereupon the accused mon witnesses,
filed a petition, praying to have certain witnesses summoned to give evidence
to rebut that of the witness called by the Magistrate. The petition was
refused. Held, that the Magistrate was not at liberty to refuse to summon the
witness tendered by the accused, except on the grounds specified in section
359 of the Code of Criminal Procedure, 1872, and that the fact that the
accused had, at the close of his case, stated that he did not wish to call the
witnesses whom he now tendered, was no reason for refusing to summon them
to meet fresh evidence taken by the Magistrate. In re Deela Mahton, 8 Cal.
L B., 70(1881).
258. (/) If in any case under this chapter in which a Acqmttal"
charge has been framed the Magistrate finds the accused not
guilty, he shall record an order of acquittal.
{2) If in auy such case the Magistrate finds the accused Conviction,
guilty, he shall pass sentence upon him according to law.
For form of warrant oj commitment on a sentence of imprisonment
' or fine if passed by a Magistrate, see schedule V, No. 29.
An order dismissing a complaint under section 220 of the Code of Crimi acquittal.
nal Procedure, 1872, amounts to an acquittal. In re Jadubar Moolcerjee, 5 Cal.
L. B., 359 (1879).
A man accused of theft was acquitted by the Deputy Magistrate under Acquittal—Re
section 220 of the Code of Criminal Procedure, 1872. The District Magistrate, tm1,
at the instance of the police, ordered the case to bo re-tried. It appeared that
the Deputy Magistrate had not framed any charge, but that no failure of .
justice had been occasioned by his not doing so. Held, that the Magistrate
had no power to order a re-trial, without first setting aside the order of acquit
tal ; and that he had no power to set aside the order of acquittal, as the case
had not been appealed to him. In re Joja Pashan, 3 Cal. L. B., 131 (1878).
259. When the proceedings have been instituted upon com- A0bInep^nan<^
plaint, and upon any day fixed for the hearing of the case the com
plainant is absent, and the offence may be lawfully compounded,
344 Proceedings in Prosecutions. [Chap, XXII.
the Magistrate may, in his discretion, notwithstanding anything

hereinbefore contained, at any time before the charge has been
framed, discbarge the accused.
Dinnidal of A Magistrate is not competent to pass an order of dismissal or discharge
complaint. jn consequence of the absence of the complainant in warrant-cases not coming
within section 259 of the Code of Criminal Procedure, 1882, except in cases
coming within the last clause of section 253 of the same Code. Govinda Dan
v. Dulall Daw, I. L. R., 10 Cal , G7 (1883).
CHAPTER XXII.
Of Summaby Trials.
Power to try 260* (7) Notwithstanding anything contained in this
summarily.
Code—
(a) the District Magistrate,
(b) any Magistrate of the first class specially empowered in
this behalf by the Local Government, and
(c) any Bench of Magistrates invested with the powers of a
Magistrate of the first class and specially empowered in
this behalf by the Local Government,
may, he or they think fit, try in a summary way all or any of
the following offences :—
(a) offences not punishable with death, transportation or
imprisonment for a term exceeding six months ;
(6) offences relating to weights and measures under sections*
264, 265 and 266 of the Indian Penal Code ;
(c) hurt, under section" 323 of the same Code ;
(rf) theft, under sections* 879, 380 or 381 of the same Code,
where the value of the property stolen does not exceed
fifty rupees ;
(e) dishonest misappropriation of property under section*
403 of the same Code, where the value of the property
misappropriated does not exceed fifty rupees ;
'Section 264.—Fraudulent use of false Section 380. —Theft in a building, tent
instrument for weighing. or vessel.
„ 265.--Fraudulent use of false „ 381.—Theft by clerk or servant
weight or measure. of property in possession
„ 266.—Being in possession of of master or employer.
false weights or measures „ 403.—Dishonest misappropria
for fraudulent use. tion of moveable pro-
„ 32,3.—Voluntarily causing hurt. perty, or converting it to
„ 379,-Theft. one's own use.
(/) receiving or retaining stolen property, under section*

411 of the same Code, where the value of such property
does not exceed fifty rupees ;
GO assisting in the concealment or disposal of stolen proper
ty, under section 4 14 of the same Code, where the value
of such property does not exceed fifty rupees ;
mischief, under section* 427 of the same Code ;
house-trespass, under section* 448 and offences under
sections* 451, 456 and 457 of the same Code ;
(;') insult with intent to provoke a breach of the peace, under
section 504, and criminal intimidation, under section 506,
of the same Code ;
(A) abetment of any of the foregoing offences ;
(/) an attempt to commit any of the foregoing offences, when
such attempt is an offence ;
(m) offences under section 20 of the Cattle-trespass Act,t
1871 :
Provided that no case in which a Magistrate exercises the
special powers conferred by section 34, shall be tried in a summary
way.
(2) When in the course of a summary trial it appears to the
Magistrate or Bench that the case is one which is of a character
which renders it undesirable that it should be tried summarily, the
Magistrate or Bench shall recall any witnesses who may have been
examined and proceed to re-hear the case in manner provided by
this Code.
A Native Sub-Magistrate, who had not been authorised to take down evi- Record in
dence in English, recorded the memorandum of the substance of the evidence
taken under section 355 of the Code of Criminal Procedure, 1882, in that langu
age. Held, that there was no provision in the Code prohibiting this procedure,
and that at any rate it was merely an irregularity which would not vitiate the
trial. Queen-Empress v. Gopal Goundan, I. L. r\, 19 Mad., 269 (1896).
•Section 411.—Dishonestly recei vi ng imprisonment.
stolen property, knowing Sect'on 456.— Lurking house-trespass or
it to be stolen. house-breaking by night.
„ 414.—Aisisting in concealment „ 457.—Lurking house-trespass or
or disposal of stolen pro house-breaking by night
perty, knowing it to be in order to the commis-
stolen. mission of an offence
„ 427.—Mischief, and thereby pnnishable wi'h impri
causing damage to the sonment.
■mount of 50 rupees or „ 504.—Insult intended to pro
upwards. voke a breach of the
„ 448.—House-trespass. peace.
„ 451.—House-trespass in order „ 506.—Criminal intimidation,
to the commission of an
offeuce punishable with t No. I of 1871.
346 Proceedings in Prosecutions. [Ch. XÎI.
Power of Miuris- A complainant applied to a Magistrate for process against certain persons
'"n* '° iV- CMe under 8ectlonB 447,146, 148, and 149 of the Penal Code. The Magistrate,
y. having perused the petition of the complninant and examined him on oath,
issued summonses against the persons named under those sections. The com
plainant was not himself an eye-witness of the occurrence, and merely stated
in his petition and evidence what he had been told by his servants. Subse
quently, before the accused appeared, the Magistrate examined an eye-witness,
and issued a fresh summons under section 447 only, and then proceeded to
try the case summarily, and convicted one of the accused. It was contended
that he had no power so to try and dispose of the case : Held, that the Magis
trate had power to try the case summarily. When a Magistrate ascertains
that the facts which are alleged to have taken place disclose only an offence
triable summarily, he can dispose of such case summarily, and the mere fact
that a complainaot enumerates sections of the Penal Code relating to offences
not triable summarily does not affect the jurisdiction of the Magistrate, unless
the facts of which he really complains disclose such offences. Golap Pandey
v. R. H. Boddam, I. L. R., 16Cal., 715 (1889).
Act XIII of Offences under section 2 of Act XIII of 1859 are triable summarily
ism. preamble under section 260 of the Criminal Procedure Code Th« offence made punish-
Wilfu1etbSeoich "We by section 2 of Act XIII of 1859 is the wilful and without lawful and
of contract-- reasonable excuse neglecting or refusing to perform the contract entered in-
Statute"- Freanv to P6™0"8 whom the Act concerns. Notwithstanding the preamble of the
ble not to be Act, it is not necessary to prove that a breach of contract is fraudulent in
construed as order to sustain a conviction under section 2. Where the enacting sections
operation* of °* a Statute are clear, the terms of (he preamble cannot be called in aid to
enactiiiK part— restrict their operation, or to cut them down. Queen-Empress v. Indarjit,
Summary j L R jj A„ _ 2g2 (1889).
Veiatioua com- The provisions of section 250 of the Code of Criminal Procedure, 1882, may
plaintTCom- be applied in summons-cases whether tried summarily or not. Queen- Empress
penaation. y Batata, I. L. R., 11 Mad., 142 (1887).
Summary trial— The mere circumstance of a complaint charging an accused person with
Complaint in- offences not summarily triable along with other offences so triable would not
noT*1,sumrnar'ie nece88ar"'y omt tne nummary jurisdiction of a Magistrate under section 260
triable—Sum" y of the Criminal Procedure Code. Whether a complaint affords sufficient
tioi?' juri"dic' grounds for a summary trial, or requires a trial according to the ordinary pro-
■arily ousted cednre, must be left in a great measure to the discretion of the Magistrate,
thereby. exercised with due care according to judicial methods with reference to the
circumstances of each case. Queen-Empress v. Jagjiwan, I. L. R., 10 All., 55
(1887).
Splitting 0( Where an accused is charged with offences, one of which is triable sum-
chancea forpur- marily, and the other not so triable, it is not open to a Magistrate to discard
pose o juriMlic- jne ]atter charge, and to proceed to try the case summarily. Ramanund Mah-
ton v. Koylash Mahton, I. L. R., 1 1 Cal., 236 (1885).
Criminal tre«- A person may be tried summarily for criminal trespass and mischief
P»as - Mischief. llnle88 there is a bona fide claim of right depriving the .Magistrate of jurisdic
tion. In re Gamirullah Sarkar v. AbdiU Sheikh, I. L. R , 1 ' Cal., 408
(1884).
Warrant of The signature of a Magistrate to a warrant of commitment under section
commitment— 303 of the Code of Criminal Procedure, 1872, should not be affixed by a stamp.
Sipiatureof Ma- jn Bumnmry trials under the provisions of Chapter XVIII of the Code of Cri-
mary trial-He- ""'nil Procedure, 1872, the record in non-appealable cases and the judgment
cord-Judg- in appealable cases must be written by the Magistrate. A Magistrate in such
ture-Dii?r?e"t cttees is not authorised to depute that duty to a clerk, nor to affix his signature
Magistrate— to the record or judgment by a stamp. Where a head constable of police
SfUser'i"ry trial 0f niany years' service was charged with criminal intimidation with a view
offence?1" to prevent a person from giving evidence against serious offenders, and the
District Magistrate tried the case summarily under the special power given
by section 222 (10) of the Code of Criminal Procedure, 1872 : Held that
the case ought not to have been tried summarily. Subramanya Ayyar v. The
Queen, I. L. R., 6 Mad., 39G (1883).
The enquiry to be made under section 2 of Act XIII of 1859 is not an en- Breach of
quiry into an offence which may be tried summarily. Pollard v. Mothial, I. "o"1.™*' by
L. R.; 4 Mad., 234 (1881). artificer..
No Magistrate is entitled to split up an offence into its component parts ^'jjjj"/"'^^
for the purpose of giving himself summary jurisdiction. If a charge of an with h deadly
offence not triable summarily is laid and sworn to, the Magistrate must pro- weapon,
ceed with the case accordingly, unless he is at the outset in a position to
show from the deposition of the complainant that the circumstances of aggra
vation are really mere exaggeration and not to be believed. Therefore, a Ma
gistrate, when he has before him a person charged with having been armed
with a deadly weapon while a member of an unlawful assembly, is not at
liberty to disregard that part of the charge which charges the prisoner with
having been armed with a deadly weapon, and so to give himself jurisdiction
to try the case summarily, and then, by inflicting a sentence of imprison
ment not exceeding three months, to deprive the prisoner of his right of appeal.
The Empress v. Abilool Karim, I. L. R., 4 CaL, 18 (1878).
It be
is tried
the nature of a under
complaint which
222 should
of the determine whether Proce-
a case Summary trial
should summarily section Code of Criminal —Jllrli>dlctlo"-
dure, 1872. Where the acts complained of amount to an offence which a Ma
gistrate cannot try summarily, he is not competent to hold a summary trial.
In re Beputoolla v. Najim Sheikh, 2Cal. L. R., 374 (1878).
Where, on the facts found by a Magistrate, an offence is established which Summary trial
he cannot try summarily, he is not competent to convict for an offence made —Jurisdiction,
up of only some of those facts in order to give himself jurisdiction. Such
proceedings are void under section 34, clause 4 of the Code of Criminal Proce
dure, 1872, because he was not empowered by law to try the offender sum
marily. In re Chumler Seekor Sooknl v. Dhurm Mailt Te.icarie, 1 Cal. L. R.,
434 (1878).
A summary trial under section 227, Criminal Procedure Code, 1872, Mischief -Sum-
being intended to apply only to short and simple cases, where little evidence m"r-v tTtaI"
is needed : Held, that the proceedings of a Magistrate thereunder covering
more than 130 pages and occupying 7 days, were an abuse of the law. Held,
also, that a bona fide claim of title deprives a Magistrate of jurisdic tion to deal
with a criminal charge in a summary way. In re Issur Chumler Mundle, 25
W. R., 05 (1876).
Whether a case is triable summarily or not must bo determined by the Procedurehow
complaint, not by an estimate formed by the Magistrate (e. g., of the worth of determined,
the property which the accused is charged with having stolen) after evidence
has been recorded ; and such estimate cannot retrospectively warrant a mode
of trial which was originally illegal. Ram Chumler Chatterjee v. Kanye Laha,
25 W. R., 19 (1876).
On a conviction under Act XXI of 1859, of having iu possession opium Opium-Con.
not supplied from the Government stores, the Magistrate tried the case sum- g^jjjJjT' ,riR|
marily under section 222 of the Code of Criminal Procedure, 1872, and passed a n
sentence of tine , or imprisonment, and confiscation of the opium. Held, that the
case could not lie tried summarily, the additional sentence of confiscation not
coming under section 148 of the Code. I he Queen v. Jodoonath Shaha, 23
W. R., 33 (1875),
34& Proceedings in Prosecutions. [Ch. XXII.
Summ
.1miliary trials The powers conferred upon Magistrates under the 18th Chapter of the
Procedulure. Code of Criminal Procedure, 1872, were not intended to give them the power of
altering a charge brought against an accused person, so as to bring his case
within the provisions of that chapter ; but when a charge of a serious offence,
one which the Magistrate is not competent to enquire into summarily, is pre
ferred, it is the plain duty of the Magistrate to apply the procedure prescribed
for such cases, and either to convict or acquit, or commit for trial, the person
implicated. The procedure under Chapter XV III is to be followed when a
charge is plainly and directly one of those specified in section 222. Chuiuler
Shekkur Thakoor v. Nitaloo, 22 W. R., 29 (1874).
Procedure— A Magistrate having adopted the summary procedure prescribed by Chap
Summary pro ter XVIII of the Code of Criminal Procedure, 1872, in the case of an offence
ceeding .
which he had no power to try summarily, the High Court set aside the proceed
ings as being void under section 34, clause 4 of that Code. In re Khetter Mohun
Choirrunghee, 22 W. R., 43 (1874).
Power to 261. The Locul Government may confer on any Pench of
o" Magistrates Magistrates iuvested with the powers of a Magistrate of the second
invested with or third class power to try summarily all or any of the following
leas power,
offences : —
(«) offences against the Indian Penal Code, sections * 277, 278,
279, 285, 286, 289, 290, 292, 293, 294, 323, 334, 336, 341,
352, 426 and 447 ;
(b) offences against Municipal Acts, and the conservancy clauses
of Police Acts which are punishable only with fine, or with
imprisonment for a term not exceeding one month ;
(c) abetment of any of the foregoing offences ;
(n) an attempt to commit any of the foregoing offences, when such
attempt is an offence.
•Section 277.—Defiling the water of a books, etc.

Sublic spring or reservoir, Section 293.—Having in possession ob
taking atmosphere nox scene books, etc., for sale
ious to health or exhibition.
„ 279.—Driving tr riding on a „ 294.—Obscne 8i>ngs.
public way so rashly or „ 329.—Voluntarily causing hurt.
negligently as to < ndan- „ b34. —Voluntarily causing hurt
gcr human life, etc. on grave and sudden pro
„ 285. —Dealing with fire or any vocation, not intending
combustible matter so to hurt any other than
as to endanger human the person who gave the
life, etc. provocation.
„ 286.—So dealing with any ex „ 336 Doirg any act which en
plosive snbttance. dangers human life cr
„ 289.— A person omitting to the personal safety of
take order with any ani otheis.
mal in his possession, so „ 341.—Wrongfully restraining
as to guard against dan any persoD.
ger to human life, or o' „ 352.—Assault or use of criminal
grievous hurt, from such force otherwise than on
animal. grave provocation.
„ 290.—Committing a public nui „ 426.—Mischief.
sance. ,, 447.—Criminal trespass.
„ 292.—Sale, etc., ol obscene
262. (?) In trials under this chapter, the procedure pres- S2u2ST«nd
cribed for summons-cases shall be followed in summons-cases, warrant-cases
and the procedure prescribed for warrant-cases shall be followed app lcs e-
in warrant-cases, except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three impri'
months shall be passed in the case of any conviction under this
chapter.
It is not illegal to impose solitary confinement as part of the sentence in Summary trial
a case tried summarily. Empress v. Annu Khan, I. L. K., 6 All., 83 (1883). flnementf °0""
In cases of simple imprisonment ordered as a process for enforcement Summary trial
of payment of fine, the rule of section 202 of the Criminal Procedure Code,
1882, limiting the period of imprisonment in summary trials, does not apply, hlXfauYt.
as that section only refers to substantive sentences of imprisonment. Empress
v. Asghar Ali, I. L. R., 6 All. 61 (1883).
263. In cases where no appeal lies, the Magistrate or Bench J^ro^ there*"I
of Magistrates need not record the evidence of the witnesses no »ppe»'-
or frame a formal charge ; but he or they shall enter in such form
as the Local Government may direct the following particulars :—
(a) the serial number ;

(b) the date of the commission of the offence ;
(cj the date of the report or omplaint ;
{d) the name of the c )mplainant (if any) ;
(e) tin name, parentag3 and residence of the accused ;
(/) th.3 offence -complained of and the offence (if any)
proved, and in cases coming under clause td), clause (e),
c:ause (/) or clause (g) of sub section (7) of section 260
the value of the property in respect of which tin offence
has been committed ;
(g) the plea of the accused and his examination (if any^ ;
(h) the finding, and, in the cise of a conviction, a brief statJ-

ment of the reasons therefor ;
(t) the sentence or other final order ; and

(/') the date on which the proceedings terminated.
Under section 2'3 (A) of the Code of Criminal Procedure, 1882, a Magis- Summary trials
trate, in recording his reasons for a conviction, must state them so that the j^^8'™^*.
High Court on revision may judge whether there were sufficient materials tain a state-
hefore him to support the conviction. Qui'n-Empress v. Shidqantla, I. L. R.. me,lt of ,,,le
18 Bom., 97 (1893). "SR* »
35° Proceedings in Prosecutions, [Ch. XXII.
Selling spiritu- ^ Magistrate, in cases where no appeal lies, is bound to record a brief
oub liquor statement of his reasons for convicting an accused. Whore a person is
âsonsllC*"for arre8teiI> ani' certain charges are entered against him in the police book, ho
finding otMagis- should not, on the day of trial, be called upon to meet other charges without
trate In . case previous intimation being given to him of the additional charges. The Em-
to beôrded.1 Pre*» v- Radoinath Shaha, I. L. K., 8 Cal., 105 (1881).
Recording rea- Under clause (/() of section 227 of the Criminal Procedure Code, 1872,
Hon-PraCticTiCf a^nou^n a Magistrate is not required to record any evidence, he should, in
High Courtôn recording his reasons for the conviction, state them so that the High Court on
revision. revision may judge whether there were sufficient materials before him to
support the conviction . Where they were not so stated the High Court on
motion set the conviction aside. Ihe Empress v. Punjab Singh, I. L. K., 6
Cal., 579 (1881).
Reec^-Viidg- *n 8»lnmary tria>8 under the provisions of Chapter XVIII of the Code of
ment- Signature Criminal Procedure, 1872, the record in non-appealable cases and the judg-
—District Ma- ment in appealable cases must be written by the Magistrate. A Magistrate in
roary'trio]lor™* 8UCn Cil8C8 >8 not authorised to depute that duty to a clerk, nor to affix his sig-
serious offence, nature to the record or judgment by a stamp. Where a head constable of
police of many years' service charged with criminal intimidation with a
view to prevent a person from giving evidence against serious offenders ami
the District Magistrate tried the case summarily under the special power
given by section 222 (10) of the Code of Criminal Procedure, 1872 : Held,
that the case ought not to have been tried summarily. Subramana Ayyar v.
The Queen, I. L. P.., 6 Mad., 396 (1883).
p£°abieca!!et 264. (2) In every case tried summarily by a Magistrate

or Bench in which an appeal lies, such Magistrate or Bench shall,
before passing sentence, record a judgment embodying the sub
stance of the evidence and also the particulars mentioned in section
263.
(2) Such judgment shall be the only record in cases coming
within this section.
Summary trial K was tried by a Magistrate in a summary way and convicted. Ho ap-
~ neaJbl"1 pealed to the Court of Session, which quashed his conviction on the ground
—Sgrnent-"6 merely that the substance of the evidence on which the conviction was Imd
Error or defect was not embodied in the Magistrate's judgment. Held, that the Court of Ses-
lii proceedings. g;on should not have quashed the conviction merely by reason of such defect,
but, if it found it impossible to dispose of the appeal because of such defect,
it should have required t he Magistrate to repair the same by recording a judg
ment in which the substance of the evidence should be fully embodied, and,
if necessary, re-examining the witnesses for that purpose, or to have ordered a
re-trial with that view. Empress of India v. Karan Singh, I. L R., 1 All.,
680 (1878).
Language of^re- 265. (1) Records made under section 263 and judgments re-
Sent.an ,u 8 corded under section 264 shall be written by the presiding officer,
either in English or in the language of the Court, or, if the Court
to which such presiding officer is immediately subordinate so
directs, in such officer's mother-tongue.
Bench may bo (2) The Local Government may authorise any Bench of Ma-
emXy'cferk. gistrates empowered to try offences summarily to prepare the
aforesaid record or judgment by means of an officer appointed in
§s. 264-267-] Frofee:$$gs {n fygsecvfens. 351
this behalf by the Court to which such Bench is immediately sub

ordinate, and the record or judgment so prepared shall be signed
by each member of such Bench present taking part in the proceed
ings.
(3) If no such authorisation be given, the record prepared by
a member of the Bench and signed as aforesaid shall be the proper
record.
(4) If the Bench differ in opinion, any dissentient member
may write a separate judgment. t
CHAPTER XXIII.
Of Trials before High Coukts and Courts of Session.
A.—Preliminary.
266. In this chapter, except in sections 276 and 307, and in " High Court"
Chapter XVIII, the expression « High Court" means a High deflned'
Court of Judicature established or to be established under the In
dian High Courts Act. 1861,* and includes the Chief Court of the
Punjab, the Court of the Recorder of Rangoon and such other
jbourts as the Governor-General in Council may, by notification in
the Gazette oj India, declare to be High Courts for the purposes of
this chapter.
1 1 267.
v All
- trials under
• 1* this
T' chapter
• f ■ • before
"• • a High
6 Court shall Triaia beforeto
High Court
be by jury ; be by jury.
and, notwithstanding anything herein contained, in all crimi
nal cases transferred to a High Court under this Code or under
the Letters Patent of any High Court established under the Indian
~i|*h Courts Act, 1861," the trial may, if the High Court so directs,
yjury.
The trial of a British seaman for an offence committed on a British ship Trial of Britiah
on the higli seas must be conducted under the Code of Criminal Procedure, one'nce commit-
1882, though the offence charged must be an offence under the English law. ted on a Britiah
Queen- Empress v. Gunning, 1. 1. B., 21 Cal., 782 (1894). »nê
The rule laid down in Regina v. Elmstone (7 Bom. H. C. (Crown Cases) Jurisdiction—
89) to the effect that English and not Indian law is applicable to offences com- High seas—
luitted on the high seas, is altered by Statute 37 and 38 Vic, c. 27, which pro- Sdmnhe'
vides that such offences shall bo tried and punished according to the local law. Iiwh seas-Law
The accused, who was captain of a native craft, was charged with having dis- °$,,I111^b(!oln?
honestly sold his cargo and scuttled his ship in the course of a voyage from mitted within
Aleppy to Bombay.
committed for trial to The accused Judge
the Sessions was arrested in thewho
of Ratnagiri, Katnagiri
convicteddistrict, and oJJ^JjjJj9
him under iy 'ot J'cl
c
sections 407 and 437 of the Indian Penal Code, and sentenced him to five years'
rigorous imprisonment. In appeal the accused contended that the Sessions
Judge of Ratnagiri had no jurisdiction to try the case, lstly, because the first
• M and M Vict., o. 10*.
$52 Proceedings in Prosecutions. [Ch. l&Xlii.
offence, if it took place at all, was committed on the territorial waters of Qoa ;
and, 2ndly, because the offence, if committed on the high seas, could only
be tried according to the law of England and not according to the Indian
Penal Code. Held (1), that the Court at Ratnagiri had jurisdiction. If the
offence were committed within three miles of Qoa, the Treaty Act IV of 1880
between England and Portugal as regards the Goa territory conferred the
right to try such cases in British India. (2). If the offenco were committed
beyond the three-mile limit and on the high seas, the Court had jurisdiction,
and the Indian Penal Code applied under the provisions of Statute 30 and
31 Vic, c. 124, section 11, and Statute 37 and 38 Vic, c 27. Queen-Empress
v. Sheik Abdool Rahiman, I. L. R., 14 Bom., 227 (1889).
cSfrt ots™- 268- All trials before a Court of Session shall be either by
jury orwithy jury, or with the aid of assessors.
Itocaf"Govem. 269. (7) The Local Government may, with the previous
ment may order sanction of the Governor-General in Council, by order in the offi-
OSurtof sewion c^ Gazette, direct that the trial of all offences, or of any particu-
to be by jury. iar ciass 0f offences, before any Court of Session, shall be by jury
in any district, and may, with the like sanction, revoke or alter
such order.
(2) The Local Government, by like order, may also declare
that, in the case of any district in which the trial of any offence is
to be by jury, the trial of such offences shall, if the Judge, on
application made to him or of his own motion, so directs, be by ju
rors summoned from a special jury list, and may revoke or alter
such order.
(3) When the accused is charged at the same trial with
several offences of which some are and some are not triable by
jury, he shall be tried by jury for such of those offences as are
triable by jury, and by the Court of Session, with the aid of the
jurors as assessors, for such of them as are not triable by jury.
No- "tea Under section 269 of the Code of Criminal Procedure, 1882, the
dstwuoth De- Hon'ble the Lieutenant-Governor and Chief Commissioner is pleased to
cember, 188*. direct that, from the commencement of the calendar year 1885, the trial,
before the Court of Session, of the offences specified in schedule A here
to appended, shall be by jury in each of the districts specified in schedule
B, when the accused has been committed to the Court of Session by a
Magistrate exercising jurisdiction in the district.
Schedule A.
t.—Kidnapping and abduction.— Sections 363, 364, 365, 866, 367,
368, 369, 372, and 378 of the Indian Penal Code.
II.—Rape.—Section 376 of the Indian Penal Code.
i • •
HI.— Theft.—Sections 379, 880, 381 and 882 of the Indian Penal
Code.
IV.—Robbery and dacoity.— Sections 892, 893, 894, 395, 397,
398, 399, and 401 of the Indian Penal Code.
Ss. 268-271.] Proceedings in Prosecutions
V.—Criminal misappropriation.—Sections 403 and 404 of the

Indian Penal Code.
VI. —Receiving stolen property.— Sections 411, 412, 413, and 414
of the Indian Penal Code.
VII.—Mischief.—Sections 426, 427, 428, 429, 430, 431, 432.
434, 435, 48G, and 440 of the Indian Penal Code.
VIII.—House-Trespass.—Sections 448, 450, 451, 452, 453, 454.
455, 456, 457, 458, 459, 460, 461, and 462 of the Indian
Penal Code.
IX.— Offences relating to marriage.— Sections 493, 494, 495, 496
497, and 498 of the Indian Penal Code.
X.—Abetments of, and attempts to commit, any of the above-mentioned
offences.—Chapters V and XXIII of the Indian Penal Code.
Schedule B.
Allahabad, Benares, Luckrow.
(Local Rules and Orders made under Enactments applying to the
A\- W. P. and Oudh, 1898).
L and N were tried by a Sessions Court on charges of dacoity and niur- jury wrongly
der. The jury returned a verdict of guilty on both charges. The Judge, con- treated at
trary to the provisions of section 269 of the Code of Criminal Procedure, 1882.
treated the jury as assessors in respect of the charge of murder, and, convict- unanimous opi-
ing L ant) N of dacoity, acquitted them of murder. Held, that the irregular "^J1^ n"ro^w9.
procedure of the Judge could not deprive the verdict of the jury of its proper Mn accepted at
legal effect. Queen-Empress v. Lnksamana, I. L. R., 9 Mad., 42 (1885). 'omul verdict.
Iu a trial by a jury before a Court of Session upon charges some of Trial by jury of
which were triable by a jury and some with the aid of assessors, the jury by offences tome of
a majority of four to one, returned a verdict of " not guilty " on all the âbie'wlth the
charges. Held, that it was not competent to the Judge, who disagreed with aid of aaaenora.
the verdict, to treat the trial, so far as it dealt with the latter charges, as a
trial with the aid of assessors, and concurring with the minority to convict
and sentence the accused persons. It was the duty of the Judge in such a
case to have accepted the verdict as one of acquittal, and then to have passed
orders in accordance with section 263 of the Code of Criminal Procedure,
1872. In re BhoJtnalh Dey, 4 Cal. L. R. , 405 (1879).
Trial by jury ceases in a district when the district censes to belong to a Trial by jury,
division to which trial by jury has been extended. Queen v. Khoodeeram, 8
W. R., 39 (1867).
270. In every trial before a Court of Session tbo prose- Trial i»fore
cution shall be conducted by a Public Prosecutor. ^^roi^led
hyPublioFroae-
B.— Commencement of Proceedings.
271. (i) Wben the Court is ready to commence the trial, ^0^ri™,e"com•n,
the accused shall appear or be brought before it, and the charge
23
354 Proceedings in Prosecutions. [Ch. XXI II-
shall be read out in Court and explained to him, and he shall be

asked whether he is guilty of the offence charged, or claims to be
tried.
Plea of guilty. (g) jf tne accuse<l pleads guilty, the plea shall be recorded,
and he may be convicted thereon.
Charge of inur- An accused person in answer to a charge of murder stated that lie had
bL'%hStatelliscd killed ms w'ê ' ât 'na* 'ie '1IU' done 80 ,n consequence of his having dis-
in aimver to— covered her in an act of adultery on the previous day: Held -that such a
Plea of guilty, statement did not amount to a plea of guilty on the charge ; and that it was
the duty of the Court to try whether the provocation, therein disclosed, was
sufficiently grave and sudden to reduce the offence. Netai Luskar v. Queen-
Empress, I. L. R., 11 CaL, 410 (1885).
Murder -Ex- At a trial before a Sessions Court a charge was read out to the prisoners
planation of t0 tne effect that they at a certain place on a certain date committed murder
tial. csse"" by causing the death of M, and that they had thereby committed an offence
punishable under section 302 of the Penal Code and within the cognizance of
the Court of Sessions. The prisoners pleaded guilty, and were convicted on
their plea. The charge was not explained to the prisoners. In answer to
questions put by the Court, prisoners stated that they had killed J/, and that
they made the admissions of their own accord, and not on the persuasion of any
one. Held, that the conviction must be quashed, and a new trial ordered.
Aiyavu v. Queen-Empress, I. L. B., 'J Mad., 61 (1885).
Plea of guilty— A prisoner, charged under section 211 of the Penal Code with having
False charge— brought a false charge with intent to injure, by accusing A of having caused
Kxi')?iiin?ng ea~ the death of a person by doing a rash or negligent act not amounting to cul-
charge. pable homicide under section 304A, stated at the trial that the original com
plaint made by him was false, and that he made it unthinkingly. The Ses
sions Judge treated this statement as a plea of guilty, and sentenced the pri
soner to rigorous imprisonment. No record of the prisoner's plea, as required
by section 237 of the Criminal Procedure Code, appeared on the proceedings,
nor did it appear that the charge had been explained as well as read to the
prisoner, and the Judge considered that the original complaint did not amount
to a false charge of an offence under section 304A. Held, that the convic-
. tion was bad. The Empress v. Gopal Dhanul; I. L. R., 7 CaL, 96 (1881).
Necessity for When arraigning an accused, and before receiving his plea, the Court
explaining should be careful to insure the explanation of the charge in a manner suffici-
noensed—Sinie- ent'y explicit to enable the accused to understand thoroughly the nature of
ment to Mugis- the charge to which he is called upon to plead It is not necessaiy that a
trate in foreign statement made to a Court by an accused in a foreign language should be
language. taken down in the words of that language. The language in which the
statement is conveyed to the Court by the interpreter is the language in
which it should be recorded. Vaimbilee v. The Empress, 1. L. R., 5 CaL,
826 (1880).
Admission by The prisoner having admitted before the Court of Session that he had
Fnsanit1--
nsamy. killed his wife,
confession no assessors
he pleaded that were
he wasempannelled At the
not in his right mindend,at the
however,
time. ofThe
his
Judge, therefore, proceeded to record medical and other evidence on the point,
and, having come to the conclusion that there was no reason to doubt from the
prisoner's conduct, cither prior or subsequent to the murder, that in committing
the murder he knew that he was doing a wrong act, convicted the prisoner.
Held, that the plea was in effect one of not guilty, and that the trial should
not have proceeded without assessors, and that it should be quashed. Thi
Queen v. Cheit Ram, 5 All. H. C, 110 (1878).
Ss. 272-275I Proceedings in Prosecutions. 355
Where a person accused of murder acknowledged having struck his victim, Confession by
but repudiated the intention to murder, and the Sessions Judge accepted this eiunteioT mur-
acknowledgment as a plea of guilty, and omitted to record any further cvi- dev—New trial,
dence : Held, that the Judge was bound to accept the statement of the accused
as a whole, if it was taken as a confession at all. Conviction for murder ac
cordingly set aside, and new trial order. The Queen v. Sonaoollah, 25 W R ,
23 (1876).
An accused should plead by his own mouth, and not through his counsel Accused -Plea,
or pleader, though his counsel or pleader may, at the proper time, address
the Court on his behalf. The Queen v. Roqpa Goicalla, 15 W. R., 42 (,1871).
A Seas-ions Judge, after a prisoner upon his trial has pleaded what in effect Confession be-
amounts to a plea of nor guilty, is not justified in convicting the prisoner solely ,ore Mwirtrate.
upon a confession made before the committing Magistrate. The Queen v.
Hursook-h, 2 All. H. C, 479 (1870).
Where a prisoner pleads guilty, his convic tion upon that plea is valid, Plea of pUlty—
although there are no assessors. Ihe Queen v. Sreelcant Chared, 10 \V. R., As8CMOrs'
43 (1868).
272. If the accused refuses to, or does not, plead, or if be Refusal to plead
claims to be tried, the Court shall proceed to choose jurors or asses- tricd.slm to ^
sors as hereinafter directed and to try the case :
Provided that, subject to the right of objection hereinafter men- Trial by same
tioned, the same jury may try, or the same assessors may aid in the s"rs o7 several
trial of. as many accused persons successively as the Court thinks fit. J^"^™"1""6*
273. (J) In trials before the High Court, when it appears %ni^ 0l,Jar"^'
to the High Court, at any time before the commencement of the !Una ocu,rge*-
trial of the person charged, that any charge or any portion there
of is clearly unsustainable, the J udge may make on the charge an
entry to that effect.
(2) Such entry shall have the effect of staying proceedings Kflect of entry,
upon the charge or portion of the charge, as the c.ise may be.
C.— Choosing a Jury.
274. (1) In trials before the High Court the jury shal: con- Number of jury
sist of nine persons.
(2) In trials by jury before the Court of Session the jury shall
consist of such uneven number, not being less than three, or more
than nine, as the Local Government, by order applicable to any par
ticular district or to any particular class of offences in that district,
may direct.
275- In a trial by jury before the Court of Session of a jury for trial of
person not being an European or an American, a majority of the lfu™™ims 1 oJ
jury shall, if he so desires, consist of persons who are neither Euro- fo"0"^^ ^
peans nor Americans. session.
356 Proceedings in Prosecutions. [Ch. XXI I i.
ch£e" bîot.1* *76' The Jurors s°all be chosen by lot from the persons
summoned to act as such, in such manner as the High Court may
from time to time by rule direct :
Provided that—
Existing br»c- first, pending the issue under this section of rules for any
tice maintained. Court, the practice now prevailing in such Court in respect to the
choosing of jurors shall be followed ;
persona not aum secondly, in case of a deficiency of persons summoned, the
Sole i whe" number of jurors required may, with the leave of the Court, be
chosen from such other persons as may be present;
aperian'u'rors thirdly, in the presidency-towns -
(a) if the accused person is charged with having committed
an offence punishable with death, or
(b) if in any other case a Judge of the High Court so directs,
the jurors shall be chosen from the special jury list herein
after prescribed; and
fourthly, in any district for which the Local Government has
declared that the trial of certain offences may be by speci tl jury,
the jurors shall, in any case in which the Judge so directs, be
chosen from the special jury list prescribe 1 in section 325.
Higu Court's Act X of 1875, section 33, contemplates that tlie names of the jury to
dureAct oUTl 1,0 " cll08en by ôt " 8ha11 ftH De drawn out of one box containing the names
1875), section S3 of all persons summoned to act as jurors. Reg. v. Vithul Das Pmnjivaudas,
-Couatitution I L. R., 1 Bom., 462 (1876).
Names of jurors 477. (/) As each juror is chosen, his name shall be called
to be called. g,\ond, and, upon his appearance, the accused shall be asked if he
objects to be tried by such juror.
objection to ju- (2) Objection may then be taken to such juror by the accus-
ro™- sed or by the prosecutor, and the grounds of objection shall be
stated :
Objection with- Provided that, in the High Court, objections without grouuds
°toted?u"ds stated shall be allowed to the number of eight on behalf of the
Crown and eight on behalf of the person or all the persons charged.
Groundsof ob- 278. Any objection taken to a juror on any of tlie follow-
jection. j„g grounds, if made out to the satisfaction of the Court, shall be
allowed —
(a) some presumed or actual partially in the juror ;
(6) some personal ground, such as alienage, deficiency in the
qualification required by any law or rule havipg the force
of law for the time being in force, or being under the

age of twenty- one or above the age of sixty years ;
(c) his having by habit or religious vows relinquished all
care of wordly affairs ;
(d) his holding any office in or under the Court ;
(e) his executing any duties of police or being entrusted
with police-duties ;
if) his having been convicted of any offence which, in the
opinion of tho Court, renders him unfit to serve on the
jnry ;
(g) his inability to understand the language in which the
evidence is given, cr when such evidence is interpreted,
the language in which it is interpreted ;
(/t) any other circumstance which, in the opinion of the
Court, renders him improper as a juror.
479. (/) Every objection taken to a juror shall be decided ^j™"0' ob-
by the Court, and such decision shall be recorded and be final.
(2) If the objection is allowed, the place of such juror shall ^fu"^,0^'^
be supplied by any other juror attending in obedience to a sum- 7u0°^bieotion
mons and chosen in manner provided by section 276, or if there * °We '
is no such other juror present, then by any other person present
in the Court whose name is on the list of jurors, or whom the
Court considers a proper person to serve on the jury :
Provided that no objection to such juror or other person is
tiiken under section 278 and allowed.
280. (/) When 1 he jurors have been chosen, they shall fu°ryman 0
appoint one of their number to be foreman.
(2) The foreman shall preside in the debates of the jury, de
liver the verdict of the jury, aud ask any information from the
Court that is required by the jury or any of the jurors.
(5; If a majority of the jury do not, within such time as the
Judge thinks reasonable, agree in the appointment of a foreman,
he shall be appointed by the Court.
281. When the foreman has been appointed, the jurors swearing of
shall be sworn under the Indian Oaths Act, * 1873. j»ror».
282. (i) If, in the course of a trial by jury, at any time be- J^Sf^""
fore the return of the verdict, any juror, from any sufficient cause, rcaaeitoat-
is prevented from attending throughout the trial, or if any juror teIld,e,°-
• No. X of 1878.
358 Proceedings in Prosecutions. [Ch. XXIII.
absents himself, and it is not practicable to enforce bis attendance,

or if it appears that any juror is unable to understand the language
in which the evidence is given, or, wben such evidence is interpre
ted, the language in which it is interpreted, a new juror shall be
added, or the jury shall be discharged and a new jury chosen.
(2) In each ol such cases the trial shall commence anew.
Discharge of 283. The Judge may also discharge the jury whenever the
&M8of prt' prisoner becomes incapable of remaining at the bar.
aoner.
D. — Choosing Assessors.
Assessors how 284« When the trial is to be held with the aid of assessors,
chosen. two or more shall be chosen, as the Judge thinks fit, from the per
sons summoned to act as such.
Procedure when 285. (/) If, in the course of a trial with the aid of asses-
"bteto%ttond sors' n* anv ^me before ê finding, any assessor is, from any suffi
cient cause, prevented from attending throughout the trial, or
absents himself, and it is not practicable to enforce his attendance,
the trial shall proceed with the aid of the other assessor or asses
sors.
(2) If all the assessors are prevented from attending, or
absent themselves, the proceedings shall be stayed, and a new trial
shall be held with the aid of fresh assessors.
During the course of a trial before a Sessions Court with three assessors,
vented°by'death one assessor died at an early stage of the proceedings. Later on, another
or illness from assessor became too ill to take any further part in the trial, and the third as-
trial"d"'g * sessor was obliged to retire at the beginning of the accused's pleader's address
to the Court and did not return until it was finished. Held, that the law con
templated the continuous attendance of at least one assessor throughout the
trial. This condition not having been fulfilled, the proceedings before the Ses
sions Court must be set aside as having (with regard to the provisions of sec
tion 268 of the Code of Criminal Procedure, 1882), teen held before a Court not
having jurisdiction. Queen- Empress v. Muhammad Mahmud Khan, I. L. R.,
13 All., 337 (1891).
Trial with the ^hc accused was committed for trial to the Sessions Court on a charge of
aid ofasscssors— murder. Ho pleaded not guilty to the charge, and claimed to be tried. There-
Commcncement upon the Sessions Judge chose two assessors ; but as one of them was ill, his
the aid of asses- attendance was at once dispensed with, and the Sessions Judge proceeded
sors. «ith the trial with the aid of the other assessor only. Held, that this
procedure was illegal and contrary to sections 284 and 285 of the Code of Cri
minal Procedure, 1882. The attendance of one of the assessors having been
dispensed with before the commencement of the trial, the Sessions Judge
ought to have chosen another assessor in his place. A trial in the Sessions
Court " with the aid of assessors " does not begin with the reading of the
charge, as the assessors are chosen under section 272 of the Code of Criminal
Procedure, 1882, only if the accused does not plead to the charge or claims to
be tried. Queen-Empress v. Bastiano Din Alexander Silva, I. L. R., 15
Bom , 514 (1890).
E.— Trial to Close of Cases for Prosecution and Defence.
286. (/) When the jurors or assessors have been chosen, ^5en™*cutlull
o.'ise
the prosecutor shall open his case by reading from the Indian °r prosecu on>
Penal Code or other law the description of the offence charged,
and stating shortly by what evidence he expects to prove the guilt
of the accused.
(<?) The prosecutor shall then examine his witnesses. Examination of
1 witnesses.
[166 (Evidence Act). In cases tried by jury or with assessors, [ power of jury
the jury or assessors may put any questions to the witnesses through or pu^^Scrt™^
by leave of the Judge, which the Judge himself might put, and which
he considers proper.]
In a trial before a Court of Session or a High Court the Public Prosecu- Public prosecu
tor conducting the case for the Crown is not bound to call aa a witness for before a'court
the Crown or to put into the witness-box for the purpose of cross-examination of Session or
any of the witnesses appearing in the calendar as witnesses for the Crown bI0^h(c°u1rt J10'
wliose evidence is in his opinion unnecessary. Queen-Empress v. Durga, I. L., alT'witnesses
R., 16 All.,' 84 v(1893).
' whose
are names.m
returned
It is the duty of a Sessions Court to examine all the witnesses sent up the ca^n^!,r'
by the committing Magistrate. That Court is not justified in rejecting any Practice-Ses-
of the witnesses so sent up nnless it has good reason to believe that such wit- \^tnes*Êe
ness came into the Court-house with a predetermined intention of giving jection by Court
false evidence. Queen-Empress v. Bankhandi, I. L. R., 15 All., 6 (1892).
x ' of Session sent
witnesses of
At a trial before a Sessions Court, the Attorney who appeared for the nutting Magis-"
prisoner suggested to the Court that, to expedite the trial, certain depositions trate.
of witnesses for the prosecution, taken before the Magistrate, should be read, witnesses" ««•
and that he should be allowed to cross-examine the witnesses thereupon ; to urination of—Ir-
this course the Government Prosecutor and the Court consented. Held, regularity,
that this procedure was illegal, but that, inasmuch as it had not occasioned a
failure of justice, a new trial should not be granted. Subba v. 'l he Queen-Em
press, I. L. R., 9 Mad., 83 (1885).
It is the duty of the Public Prosecutor at a trial before the Court of Practice—Trial
Session to call and examine all material witnesses sent up to the Court on court—Non-
behalf of the prosecution, and the Judge is bound to hear all the evidence production of
upon the charge. The Public Prosecutor is not bound to call any witnesses who m*'*rial wit"
will not, in his opinion, speak the truth or support the points he desires to Crown—Duty of
establish by their evidence ; but in such circumstances he should explain to Public Prose-
the Court that this is his reason for not calling these witnesses, and he should cutor-
offer to put them in the box for cross-examinotion by the accused at their
discretion. In the absence of any such explanation, or of other reasonable
grounds apparent on the face of the proceedings, inferences unfavourable to
the prosecution must be drawn from the non-production of its witnesses
Queen-Empress v. Tulla, I. L. R., 7 All., 904 (1885).
Section 288 of the Criminal Procedure Code was never intended to be Trial before
used so as to enable a Court trying a cause to take a witness's deposition Court of Ses-
bodily from the committing Magistrate's record, and to treat it us evidence "(von before00
before the Court itself. A Judge is bound to put to the witnesses whom he committing
proposes to contradict by their statements made before the committing Magis- Magistrate
trate, the whole or such portions of their depositions as he intends to rely upon contradict' wit°
in his decision, so as to afford them an opportunity of explaining their mean-
ing, or denying that they had made any such statements, and so forth. In a
360 Proceedings in Prosecutions. [Ch. XXII 1.
case in which the Sessions Court had neglected to apply the above rules >
Straight, J., quashed the conviction. Queen Empress v. Dan Sahai, I. L. K >
7 All., 862 (1885).
Witnesses, Where a Sessions Judge gave it as a sufficient reason for the non-produc-
prosecution to *'on °^ certtt'n witnesses in Court on the part of the prosecution that they had
produce. been examined by the committing Magistrate against the express wish of the
police-officer in charge of the prosecution : Held, that that was not u valid
ground for the non-production of the witnesses in the Sessions Court. In con
ducting a case for the prosecution, all the persons who are alleged or known
to have knowledge of the facts ought to be brought before the Court and exu
mined. Queen-Empress v. Ram Sahai Lai, I. L. R., 10 Cal, 1070 (1884).
Evidence—Duty It is primdfacie the duty of the prosecution to call all the witnesses who
of prosecution— prove tlieir cenviction with the transactions connected with the prosecution
d™wnD<m and who must be able to give important information. If such witnesses are
failure to call not called without sufficient reason being shown, the Court may properly
Mu^rectior. draw an inference adverse to the prosecution. The only thing that can relieve
the prosecutor from calling such witnesses, is the reasonable belief that, if
called, they would not speak the truth. No such corresponding inference can
be drawn against an accused. The Empress v. Dhunno Kazi, I. L. R., 8 Cal.,
121 (1881).
Examination 287* The examination of the accused duly recorded by or
fore MuKistntte before the committing Magistrate shall be tendered by the prose-
to be evidence. cut0r and read as evidence.
[Consideration [30 (Evidence Act). Where more persons than one are being
feu?onaffectii« ^rioA jointly for the same offence, and a confession made by one of such
person making persons affecting himself and some other of such persons is proved,
jointly under" *ne Court may take into consideration such confession as against such
offencerjWime otner person as well as against the person who makes such confession.
Explanation. —" Offence," as used in this section, includes the
abetment of, or attempt to commit, the offence.
Illustration/,
(«) A and B are jointly tried for the murder of C. It is
proved that A said, " B and I murdered C." The Court may consider
the effect of this confession as against B.
(i) A is on his trial for the murder of C. There is evidence to
show that 0 was murdered by A and B, and that B said, " A and I
murdered C."
This statement may not be taken into consideration by the Court
against A, as B is not being jointly tried.]
[Presumption [80 (Evidence Act). Whenever any document is produced before
produced"!!!611 * any Court, purporting to be a record or memorandum of the evidence,
dence*] °' given by a witness in a Judicial proceeding or before any officer autho
rised by law to take such evidence, or to be a statement or confession by
any prisoner or accused person, taken in accordance with law, and purport
ing to be signed by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume that the document is genuine ; that
any statements as to the circumstances under which it was taken, pur
porting to be made by the person signing it, are ture ; and that such evi
dence, statement, or confession, was duly taken.]
A deposition given by a person is not admissible in evidence against him Deposition of

in a subsequent proceeding without its Insmg first proved that he was the Jg^JESE
person who was examined and gave the deposition. A pardon was tendered Die in evidence
to an accused, and his evidence was recorded by the Magistrate. Subsequent- against him in
ly the pardon was revoked, and he was put on his trial before the Sessions J^SSS"0 Pr°
Judge along with the other accused. At the trial the deposition given
by him before the Magistrate was put in and used in evidence against him
without any proof being given that he was the person who was examined as
a witness before the Magistrate. Held, that the deposition was inadmissible
without proof being given as to the identity of the accused with the person
who was examined as a witness before the Magistrate. Queen-Etttprett v.
Durga Sonar, I. L. B., 11 Cal., 580 (1885).
It is the duty of Session Judges to place beyond all doubt, " in cases OanfcjjfaB—Bt*
where any serious importance is to be attached to a confession subsequently nntrnf flnwlwii
retracted as having been made under police or other coercion, that such con>- Judge,
fession was not the result of threats or violence, but was the spontaneous and
voluntary act of the party making it." Empress v. Malar, \V. N., N.-W. P.,
1885 (F. B.), p. 59.
Several persons were charged together witli offences under sections 148, Persona jointly
302, 324, and 326 read with section 149 of the Penal Code. The Sessions oha^-fj*^
Judge, when about to examine the prisoners, required all but the prisoner "."J, aSuence0"!
under examination to withdraw from the Court, until his turn for cxamina- co-prisoners. .
tion came round, and convicted each prisoner chiefly upon what was said by
his co-prisoners during his absence from the Court. Held, that the evidence
so given was inadmissible. The Empress v. Chandra Xalh Sirkar, 1. L. [{.,
7 Cal., 65 (1881).
.1 and B were committed for trial ; the former for dacoity under section Confession—
395 of the Penal Code ; and the latter under section 412 for receiving stolen ubcoV *—"k*-
property knowing it to be such. A made two confessions, and in both he celving stolen
stated he had handed over to B some pieces of gold and silver stolen at the property,
docoity. When B was arrested, a gold ring and a silver wristlet were found
in his possession. At the trial, A pleaded guilty, and B claimed to be tried.
A goldsmith deposed that he had made the ring and wristlet found with B
out of pieces of gold and silver given to him for the purpose by B. On this
evidence, and on the confessions made by A, the Sessions Judge convicted B.
On appeal to the High Court : Held that A and B not having been tried jointly
for the same offence, the confession of A was inadmissible as evidence
against B. There was therefore no evidence of the identity of the goods
stolen at the dacoity with those found in B's possession, the case against him
failed. Conviction quashed. Empress v. Bala Patel, I. L. R., 5 Bom., 63
(1880).
It is not necessary for a Sessions Judge to read out to prisoners confes- Confession—
sions made by them before a Magistrate, and ask them if they have any oh- Magistrate's at-
jection to the reception of those confessions The examination of prisoners ,e8tl,,'on'
before a Magistrate is to he received in evidence, and the attestation of the
Magistrate is prima facie proof of the circumstances. The Queen v. Misser
Sheikh, 14 W. R., 9 (1870).
Under section 366 of the Code of Criminal Procedure, 1861, the examina- Examination of
tion of the accused before the Magistrate must be given in evidence at the accused before
Sessions trial, whether it tells for or against the prisoner ; and it is not in the MaP"tra*«-
discretion of the prosecution to put in that examination or not. Tlte Queen
v. Shaik Meher Chand, 13 W. R., 63 (1870).
_ The properly atteste 1 confession of a prisoner before a Magistrate is Confession-
sufficient for his conviction without corroborative evidence, and notwith
standing a subsequent denial before the Sessions Court. The Queen v. Bhut-
tun Bujiaun, 12 W. B., 49 (1869).
Confession be A confession before the Magistrate, though afterwards retracted before

fore Magistrate. the Sessions Court, is evidence against the party making it, under section 366
of the Code of Criminal Procedure, 1861. Queen v. Muasamut Jema, 8
W. B., 40 (1867).
Confession- A prisoner may be convicted on his own uncorroborated oonfession. Queen
v. Runjeet Sontat, 7 W. R., 73 (1866).
Confession. The whole, and not part, of a prisoner's confession must be taken in order
to his conviction. Queen v. Chokoo Khan, 5 W. K., 70 (1866),
Evidence pven 288. The evidence of a witness (Inly taken in the presence
inqmry admiss? of the accused before the committing Magistrate may, in the dis-
ble* cretion of the presiding Judge, if such witness is produced and exa
mined, be treated as evidence in the case.
Previous state* Although previous statements made by witnesses may be used, under
ments of wit section 145 of the Evidence Act, for the purpose of contradicting statements
nesses, ndrais* made by them subsequently at the trial of an accused person, they cannot, if
sibility of- Ac
complices, evi they have been made in the absence of the accused, be treated as independent
dence of. evidence of his guilt or innocence ; section 288 of the Criminal Procedure Code
will not avail anything for this purpose. Where witnesses appeared to have
taken an active part in carrying away a person after he had been grievously
assaulted and was in a helpless condition, and then leaving him in a field
where he was subsequently found dead, held, that their evidence was no better
than that of accomplices ; at any rate, it would be most unsafe for the Court
to rely upon their evidence, unless corroborated in material respects, in con
victing the accused. A'imuddin v. Queen-Empress, I. L. R., 23 Cal., 361
(1895).
Evidence before Where depositions of witnesses for the prosecution before the Magis
committing Ma trate previous to commitment wero taken without any cross-examination by
gistrate. the accused being allowed, it was held that such depositions were impro
perly treated as evidence in the Sessions Court, as they had not been
" duly taken " in the presence of the accused within the meaning of section
288 of the Code. Queen-Empress v. Tagul Sajao, I. L. R., 21 Cal., 642 (1893).
Deposition of Where a prisoner was convicted of murder on a confession, retracted at the
witness before
Magistrate— trial, corroborated by depositions read under section 288 of the Code of Cri
iion re minal Procedure, and also retracted at the trial : Held, that the prisoner
tracted. should not have been convicted on such evidence. Queen-Empress v. ~Bhar-
mappa, I. L.R., 12 Mad., 123 (1888).
Examination of At a trial before a Sessions Court, the attorney who appeared for the pri
witnesses—
Irregularity. soner suggested to the Court that, to expedite the trial, certain depositions of
witnesses for the prosecution, taken before the Magistrate, should he read,
and that he should be allowed to cross-examine the witnesses thoreupon ; to
this course the Government Prosecutor and the Court consented. Held, that
this procedure was illegal, but that, inasmuch as it had not occasioned a failure
of justice, a new trial should not be granted. Subba v. The Queen-Empress,
I. L. II., 9 Mad., 83(1885).
Trial before Section 288 of the Criminal Procodurc Code was never intended to be
Court of Ses used so as to enable a Court trying a cause to take a witness's deposition
sion—Evidence
given before bodily from the committing Magistrate's record, and to treat it as evidence be
conmi'tting Ma fore the Court itself. Queen-Empress v. Dan Saltai, I L. R., 7 All., 862
gistrate.
(1885).
Evidence of ap There is a grave doubt whether the deposition of an approver, taken be
prover—Deposi
tion of approver fore the committing Magistrate, may be used as evidence against, his accom
before commil plices on their trial before the Sessions Court, the conditional pardon of the
ting Magistrate approver having been withdrawn. In re Joyudee Paramanick, 7 Cal. L. R.(
—Withdrawal
of pardon. 66 (1886) ; Nauha Malla v. Empress, 13 Cal. L. B., 326 (1883).
A, B, and C having been charged with murder before a Magistrate, two Crosaoxamina-
vakils presented their vakalatnaraas, and applied to bo allowed to conduct the JjJJ^Jf,usal 01
defence of the accused. The Magistrate refused permission, and after record
ing the depositions of the witnesses, committed the accused to take their trial
before the Sessions Court . In the Court of the Magistrate the only material
evidence for the prosecution was that of three witnesses, who on being examin
ed in the Sessions Court, denied all knowledge of the facts to which they
had deposed before the Magistrate. Two of them denied having made the
statements recorded, while the third admitted the statements attributed to him,
but asserted they were false and made under pressure. The Sessions Judge,
disbelieving the statements made in his Court, thereupon under section 249 of
the Code of Criminal Procedure, 1872 (as amended by section 20 of the
Amending Act) used the previous depositions as evidence in the case, and
mainly upon these convicted the accused of murder and sentenced them to
transportaion for life. Against this conviction and sentence the prisoners
appealed to the High Court, on the ground that the previous depositions
ought not to have been used as evidence in the case, as the Magistrate had
refused to allow their pleaders to appear and cross-examine tho witnesss who
made the depositions. The High Court affirmed the conviction and sentence.
In re Dham Mundtd, 6 Cal. L. R., 53 (1880).
In a case in which tho accused was charged with murder, the Sessions Jeaûfkenbs-
Judgc considered the evidence given before him by the witnesses for the fore Magistrate,
prosecution to be false, but nevertheless convicted the accused, acting under
section 249 of the Code of Criminal Procedure, 1872, and relying on the evi
dence which had been given by the same witnesses before the committing
officer. Held, that section 249 did not apply to this case ; that the discretion
conferred by that section should be exercised upon substantial materials, rightly
before the Court, and reasonably sufficient to guide the judgment of the Court,
to the truth of the matter, and not upon mere speculation or conjecture ; and
that, under that section, a Judge may base his judgment on the evidence
given before the Magistrate in the presence of the accused, when there are
special and particular reasons for considering that evidence to be honest and
true, and when that evidence is to a certain extent corroborated by independ
ent testimony before himself. The Queen v. Amanulla, 21 \V. R., 49
(1874).
289.
,• (/)% When the......
examination of the, witnesses
. for the Procedure after
examination of
prosecution and the examination (11 any) or the accused are con- witnesses for
eluded, the accused shall he asked whether he means to adduce pTosecvtion-
evidence.
(2) If he says that he does not. the prosecutor may sum up

his case; and, if the Court considers that there is no evidence that
the accused committed the offence, it may then, in a case tried
with the aid of assessors,, record a finding, or, in a case tried by a
jury, direct tho jury to return a verdict, of not guilty.
(<3) If the accused, or any one of several accused, says tint

he means to adduce evidence, and the Court considers that there is
no evidence that the accused committed the offence, the Court may
then, in a case tried with the aid of assessors, record a finding, or,
in a ' cise tried by a jury, direct the jury to return a verdict, ot
not guilty.
364 Proceedings in Prosecutions. [Ch. XXITI.
(4) If the accused, or any one of several accused, says that

he means to adduce evidence, and the Court considers that there
is evidence that he committed the offence, or if, on his saying that
lie does not mean to adduoe evidence, the prosecutor sums up his
case and the Court considers that there is evidence that the accus
ed committed the offence, the Court shall call on the accused to
enter on his defence.
fhe'aocuwMl'to ^"',e ôrma''ty °^ calling "Pon an accused person to enter on his defence
enter on his de- under the provisions of section 289 of the Criminal Procedure Code, 1882, is
fence—Mis- not a mere formality, hut is an essential part of a criminal trial. Omission to
—hTterferlweo*3' ^° 80 occasions a failure of justice, and is not cured by section 537 of the
with verdict— Code. To allow the jury to pronounce their verdict before the accused is called
Uce,ire °' 'uv uPon to enter on his defence is a misdirection, though the Judge omits to
charge the jury at all. In such a case, clause (</) of section 423 of the Code
does not stand in the way of the Appellate Court's interfering with the verdict
of the jury. Queen-Empress v. Imam AU Khan, I. L. R., 23 Cal., 252 (1895).
Right of reply Where one of several accused persons tried jointly calls witnesses at the
several accused trial, Dllt the other accused call no witnesses, they must all follow in their
calls witnesses defence, and the prosecution has the right of replv on the whole case. Queen-
dSiioV10 0"ler, EinPre»* v- Sadanand Narayun, I. L. R., 18 Bom., 364 (1894).
Prosecutor's The action of the defence, during the cross-examination of a witness for
ri*ht of reply. ^)ie Crown, in tendering a document to such witness and using the same as
evidence for the defence, was held to entitle the Crown to reply, under section
292 of the Code of Criminal Procedure. Queen-Empress v. Moss, I. L. R., 16
All., 89 (1893).
Rejection by It is the• duty of■ a7 Sessions Court to examine all the witnesses sent up by
Court of
sions of wit-
of'wtt"Ses- .1 committing
the w
Magistr
Magistrate. That Court is not justified in rejecting any of the
nesses sent up witnesses so sent up unk
unless it has good reason to believe that such witness came
tW^rSto
Hn^Miu^trat*" 'nto the
tne Court-house wi with a predetermined intention of giving false evidence.
• Queen-Empress v. llai Uankhandi, I. L. R., 15 All., 6 (1892)
Documents pro- In a trial at the Criminal Sessions of the High Court, during the cross-
^"nihiStotrof " examination of one of the witnesses for the Crown, counsel for the defence
Crown witness— put certain documents to the witness, and these were read to the Court and
Right of reply, jury and marked as exhibits as evidence for the defenco, and were filed with
the record in the same way as the evidence for the prosecution had been
marked and filed. During the cross-examination of the next witness a simi
lar course was pursued, and after the cross-examination had continued for
some time, counsel for the defence applied to the Court for a ruling as to
whether the fact of documents having been used during cross-examination
'ii the manner above stated would, under section 292 of the Code of Criminal
Procedure, 1882, entitle the Crown to a reply, in the event of the accused not
calling witnesses. Held, that although, as a matter of order, such a question
would be better raised either when the first document intended to be used
in this way was put to a witness, or when the accused was asked if he
meant to adduce evidence, yet there was nothing in the Code of Crimina
Procedure, to prevent the Court from deciding the question at any other stage
and that, under the special circumstances of the case, it might be considered
then. Held, also, that the use of the documents in the manner above stated
gave the prosecution a right of reply. At a trial before the High Court or
the Court of Session, the Crown cannot demand as of right that any witness
who was not examined by the committing Magistrate either before commit
ment or, under section 219 of the Code, after it, should be called and
examined. The Court may call and examine such a witness if it cousiders it
necessary in tlie interests of justice. Queen-Empress G. W. Hayfield, I. L.
B., 14 All., 212 (1892).
The putting in, as evidence on his behalf, of any documentary evi- Prosecutor's
dence by an accused person during the cross-examination of the witnesses right of reply,
for the prosecution and before he is asked under section 289 if he means to
adduce evidence, does not give the prosecution a right to reply. Queen-Em
press v. Solomon, I. L. B., 17 Gal., 930 (1890).
_ The fact that during the cross-examination of witnesses for the prose- Eight of reply,
cution, documents are put in evidence on behalf of the accused, does not give
the prosecution the right of reply if no witnesses are called for the defence.
Queen-Empress v. Krishnaji Baburae Bulell, I. L. B., 14 Bom., 436 (1890).
When documentary evidence was put in by the accused during the case SjSJft"'0*'?
for the Crown and before examination of the accused : Held, under section "g rep y'
289 of the Code of Criminal Procedure, 1882, that the Crown had the right of
reply. Queen-Empress v. Venkatapathi, I. L. B., 11 Mad., 339 (1888).
The giving of any documentary evidence by an accused person, during Prosecutor's
the cross-examination or the witnesses for the prosecution, and before he is ^fjh^, caf'ed"
asked under section 289 if he means to adduce evidence, does not give a right by Court'- Ten-
of reply to the prosecution. In a trial before the Sessions Court the prose- <loring witness-
cutioti is not bound to tender for cross-examination all witnesses called l>efore examiuaTjoii.
the committing Magistrate The Court would not call a witness on whose
evidence it could not put implicit reliance. Empress nf India v. Kaliprosoano
Dass, I. L B , 14 Cal., 245 (1886).
It is the duty of the Public Prosecutor at a trial before the Court of Ses- Trial in Ses
sion to call and examine all material witnesses sent up to the Court on Sj,0^ ^j1"..-
behalf of the prosecution, and the Judge is bound to hear all the evidence tion of material
upon the charge. The Public Prosecutor is not bound to call any witnesses witnesses for
who will not, in his opinion, speak the truth or support the points he desires S'puiilic Pro-
to establish by their evidence ; but in such circumstances he should explain to aeoutor.
the Court that this is his reason for not calling these witnesses, and he should
offer to put them in the box for cross-examination by the accused at their
discretion. In the absence of any such explanation, or of other reasonable
grounds apparent on the face of the proceedings, inferences unfavorable to
the prosecution must be drawn from the non-production of its witnesses.
Queen-Empress v. Tulia, I. L. E., 7 All., 904 (1885).
Where a Sessions Judge gave it as a sufficient reason for the non-produc- Duty of the
tion of certain witnesses in Court on the part of the prosecution that they had Hroûrl!etlon to
been examined by the committing Magistrate against the express wish of the
police-officer in charge of the prosecution : Held that that was not a valid
conducting a case for the prosecution, all the persons who are alleged or
known to nave knowledge of the facts ought to be brought before the Court
and examined. Queen-Empress v. Ram Sahai Lull. I. L. B., 10 Cal., 1070
(1884).
The fact that the accused has, during the cross-examination of the wit- Reply, prosccu-
nesses for the prosecution, used certain documents, and that such documents tors right of.
have been put in as evidence on his behalf, does not entitle the prosecutor
to the right of reply, if, when asked upon the close of the case for the pro
secution whether lie means to adduce evidonce, the accused says that he does
not. The Queen-Empress v. Gress Chunder Bannerjee, I. L. B., 10 Cal., 1024
(1884).
366 Proceedings in Prosecutions [Ch. XXI It.
night or reply— At the close of tlie evidence for the prosecution, the attorney for the
cal'feTford"-' defence, m answer to the Judge, stated that lie meant to call witnesses. The
fence-Reply by Court then adjourned, and on the following day the attorney stated that, on
prosecutor— re-consideration, he did not intend to call witnesses. The Judge allowed the
i)ook8eon*rial— prosecutor to reply. Held, that, though the strict interpretation of sections
Examination of 289 and 292 of the Criminal Procedure Code, 1882, would warrant this course,
Jultee-"Nature was never meant by the Legislature that the prosecutor should have a reply
of questions when no witnesses are called for defence, the object of the law being evi-
pcrinissihle- dently to lot each side have an opportunity of commenting on the evidence of
jury" as'ô^ver-the other, and not to give an additional advantage to the prosecutor in such
diet. a case as the present. A well-known treatise, such as Taylor's Medical Juris
prudence, may be referred to in the course of trial. It is improper on the part
of a Judge, when examining a prisoner under section 342 of the Criminal
Procedure Code, to cross-examine him. The only questions which are per-
missihle are such as will enable the prisoner to explain any circumstances
appearing in the evidence against him. Although section 303 of the Code
empowers a Judge to ask the jury such questions as are necessary to ascertain
what their verdict is, it was never contemplated that, on ascertaining that the
jury are not unanimous, the Judge should make minute enquiries to learn the
nature of the majority and its opinion, so that ho should have the opportunity
of accepting or refusing that opinion as a verdict according as it coincides
with his own opinion or not. Whatever may be the opinion of the Judge, if he
goes so far as to ask the jury what is the exact majority, and what is the
opinion of the majority, ho ought to receive that verdict without hesitation,
and if he differs from it lie should proceed as directed by section 307. A
prisoner, or his counsel, is at liberty to offer evidence or not, as he thinks
proper, and no inference unfavourable to him can be drawn because he takes
one course rather than another. Hurry Churn Chuclcerbutty v. The Empress,
I. L. B., 10 CaL, 140 (1883).
Trialby asses- The power of summing up the evidence given by section 309 of the
-Summnmup Code of Criminal Procedure, 1882, is intended to be exorcised in long or
of evidence- intricate cases, and the Sessions Judge should confine himself to summing up
opinions of tae oyidence, am' should not obtrude on the assessors his opinion of the
assessors— worthlessness or otherwise of certain portions of the evidence. The Sessions
Sessions Judge, Judge should also conform strictly to the words of section 309, and require
'" u' each assessor to state his opinion orally. The Sessions Judge should not
utilize the services of the pleader for the prosecution for the purpose of
recording his summing up to the assessors. If lie is not capable of recording
the substance of it himself, he should employ an independent person for that
purpose. Shadulla Howladar v. The Empress, I. L. R., 9 CaL, 875 (1883).
Witnessescalled Witnesses summoned on behalf of the prosecution, and not called, ought
by the Court— to be placed in the box for cross-examination, in order that the defence may
eiuiimie0 Cr0"' have 'be opportunity of exercising this right, and afortiori, if such a witness
is called and examined by the Court under section 165 of the Evidence Act,
the prisoner should be allowed to cross-examine. The Empress v. Grish
Chunier lalukdar, I. L. R., 5 CaL, 614 (1879).
Acquittal of Held, where without asking the opinion of the assessors aCouitof
out'l*s1dnJtith" Session acquitted an accused person, after his defence had been heard, that
assessors their such omission, although a serious irregularity, was not such an error or
opinion—High^ defect in the proceedings as was, with reference to the provisions of sections
ofÊeviwon6™ 283 and 300 of the Code of Criminal Procedure, 1872, a ground for revisional
interference. In re Narain Das, I. L. R., 1 All., 610 (1878).
Witness for It is irregular to allow a witness to be examined on behalf of the pro-
prosecution, sccution after the prisoner has made his defence, when a witness is not a
witness to contradict any new case set up by the prisoner. Where, however,
the prisoner liarl full notice of the evidence which was to he given hy such
witness, and made his defence in allusion to the evidence of the witness,
the High Court refused to set aside the conviction, having regard to section
439 of the Code of Criminal Procedure, 18G1. The Queen v. Sham Kishore
Iloldar, 13 W. R., 36 (1870).
Under section 372 of the Code of Criminal Procedure, 1861, an accused SJJJrtJISn.
should he called upon to enter upon his defence, and to produce his evidence
when the case for the prosecution has heen brought to a close. Where,
therefore, one witness for the prosecution was re-called after the prisoner
had made his defence, and the prisoner had no opportunity of calling evidence
with reference to the evidence of that witness, the High Court quashed the
conviction and ordered a new trial. The Queen v. Assanoollah, 13 W. R.|
15 (1870).
290. The accused or his pleader may then open his case, Defence,
stating the facts or law on which he intends to rely, and making
such comments as he thinks necessary on the evidence for the
prosecution. He may then examine his witnesses (if any), and
after their cross-examination and re-examination (if any) may sum
up his case.
It is irregular to allow a witness to be examined on behalf of the prosecu- Witness for pro-
tion after the prisoner has made his defence, when the witness is not a witness parity1-Irre"
to contradict any new case set up by the prisoner. Where, however, the prisoner
had full notice of the evidence which was to be given by such witness, and
made his defence in allusion to the evidence of the witness, the High Court
refused to set aside the conviction, having regard to section 439 of the Code
of Criminal Procedure, 1861. The Queen v. Sham Kishore Hoklar, 13 W. R.,
36 (1870).
Under section 372 of the Code of Criminal Procedure, 1861, an accused WUcre a witness
should be called upon to enter upon his defence, and to produce his evidence {"n'â^^coll-
when the case for the prosecution has been brought to a close. Where, there- ed- Ritdit of
fore, one witness for the prosecution was re-called after the prisoner had Prit°"er-
made his defence, and the prisoner had no opportunty of calling evidence with
reference to the evidence of that witness, the High Court quashed the con
viction aud ordered a new trial. The Queen v. Assanoollah, 13 W. R., 15
(1870).
291. The accused shall be allowed to examine any witness Ris»t of accused
not previously named by him, if such witness is in attendance ; tion and bum-
but he shall not, except as provided in sections 211 and 231, be ™'™f of wit"
entitled of right to have any witness summoned, other than the
witnesses named in the list delivered to the Magistrate by whom
ho was committed for trial.
Upon the committal of certain persons for trial before the Sessions Court Refusal by
for offences under the Penal Code, each of the prisoners, under section 211 of Wiijtistrnte.to
the Criminal Procedure Code, gave in a written list of the persons whom he "wUneiTium-*
wished to be summoned to give evidence at the trial. On each of these lists moned by
the name of a particular person was entered, who objected under section 210 p„*y'e°1."*|Court—
to being summoned, on the ground that the summons was desired for vex- Sessions Judire
atious purposes only, and that there were no reasonable grounds for believing to
that any evidence he could give would be material. Upon this objection the wltncs'
committing Magistrate passed an order requiring the prisoners to satisfy him
that there were reasonable grounds for believing that the objector's evidence
was material, and, having hoard argumonts on both sides, passed an order
368 Proceedings in Frosecutions. [Ch XXIII.
refusing to issue the summons. The only ground stated by the Magistrate for
this order was that he thought the reasons assigned for the application to
have the objector summoned were insufficient. Subsequent to the order, and
before the trial in the Sessions Court had begun, the Sessions Judge, upon an
application filed on behalf of the prisoners, passed an order directing that the
objector should l>e summoned to give evidence. The order assigned no rea
sons, and was passed in the absence of objector or of any person representing
him, and without notice to show cause being issued to him. The objector
applied to the High Court for revision of the order on the ground that the
Sessions Judge had no jurisdiction to make it. Held, that when a Magistrate
refuses, u nder section 216 of the Criminal Procedure Code, to summon a
witness included in the list of the accused, he must record his reasons for
such refusal, and such reasons must show that the evidence of such witness
is not material ; that the ground stated by the Magistrate, i-iz., that the
reasons assigned for the application to have the objector summoned were in
sufficient, did not show that the evidence was not material : that the Sessions
Judge had jurisdiction to make the order complained of ; and that, even if he
had not, it would not, under the circumstances, be desirable to interfere with
his order in revision. Per Straight, J., that section 540 is not the only pro
vision of the Criminal Procedure Code, 1882, which confers on a Sessions Judge
powers of the kind exercised by him in this case. Under section 291, though
the summoning of witnesses by an accused through the medium of the Ses
sions Judge is not a matter of right, yet the Judge has an inherent power,
if he thinks proper to exercise it, to sanction the summoning of other wit
nesses than those named in the list delivered lo the committing Magistrate.
In re the Rajah of Kantit, I. L. R., 8 All., 668 (1886).
Defence—Post If an accused has not his witnesses present, the Judge should, under
ponement— section 251 of the Code of Criminal Procedure, 1872, if he sees grounds for
Witnesses.
proceeding, first call upon him for his defence, and then postpone the case.
The Queen v. Jumiruddin, 23 W. R., 58 (1875).
Prisoner—
Witness**. Under section 363 of the Code of Criminal Procedure, 1872, a prisoner is
entitled as a matter of right to have any witnesses named in the list which he
delivers to the Magistrate summoned and examined. The Queen v. Prosunno
Coomar Moitro, 23 W. R., 56 (1875).
Xedefenci— Where the omission of a Magistrate, in committing a prisoner, to enter
Omission of on t'ic record the names of certain persons who had been named as witnesses
Magistrate to for the defenco at the Sessions was brought to the notice of the Judge, and
enter 0,1 rci'onl- an order was made by the Judge regarding the witnesses to be served, but
the witnesses did not appear, and the Judge tried the prisoner in their ab
sence, and refused an adjournment in order to their production, the High
Court held that the prisoner was entitled to have the benefit of the examina
tion of the witnesses in question, and directed the Judge to examine them
accordingly. Queen v. Rajnarain Mytee, 18 W. R., 20 (1872).
Prosecutor's 292. If the accused, or any of the accused adduces any
right of reply.
eviden e, the prosecutor shall be entitled to reply.
Prosecutor's The action of the defence, during the cross-examination of a witness for
right to reply. the Crown, in tendering a document to such witness and using the same as
evidence for the defence was held to entitle the Crown to reply under section
292 of the Code of Criminal Procedure. Queen-Empress v. Moss, I L. R., 16
AH., 88 (1893).
Prosecutor's The fact that during the cross-examination of witnesses for the prosecu
rigat of reply. tion, documents are put in evidence on behalf of the accused, does not give
the prosecution the right of reply if no witnesses are called for the defence.
Queen-Empress v. Krishnaji Babo Rue Bulell, I. L. I!., 14 Bom., 436 (1890).
Where documentary evidence was put in by the accused during the case Prosecutor's
for the Crown and before examination of the accused : Held, under section ri*nt to ropljr.
289 of the Code of Criminal Procedure, 1882, that the Crown had the
right of reply. Queen-Empress v. Venkatapathi, I.L.B., 11 Mad., 339 (1888).
The giving of any documentary evidence by an accused person during Prosecutor's
the cross-examination of the witnesses for the prosecution, and before he is rlg rep y'
asked under section 289 if he means to adduce evidence, does not give a right
of reply to the prosecution. In a trial before the Sessions Court the prosecu
tion is not bound to tender for crows-examination all witnesses called before
the committing Magistrate. The Court would not call a witness on whose evi
dence it could not put implicit reliance. Empress of India v. Kaliprosonno
Doss, I. L. B., 14 Cal., 245 (1886).
The fact" that the accused has, during the cross-examination of the Prosecutor's
witnesses for the prosecution, used certain documents, and that such rl(?ht of reP'.v-
documents have been put in as evidence on his behalf does not entitle
the prosecutor to the right of reply, if when askud upon the close of
the case for the prosecution whether he means to adduce evidence, the accused
says that he does not. The Queen-Empress v. Grees Chunder Banerjee, I. L.
R., 10 Cal., 1024 (1884).
At the close of the evidence for the prosecution, the attorney for the do- Prosecutor'"
fence, in answer to the Judge, stated that he meant to call witnesses. The r,gixi of rep,,v"
Court then adjourned, and on the following day the attorney stated that, on
reconsideration, he did not intend to call witnesses. The Judge allowed the
prosecutor to reply. Held, that though the strict interpretation of sections
28'J and 292 of the Criminal Procedure Code would warrant this course, it
was never meant by the Legislature that the prosecutor should have a reply
when no witnesses are called for the defence, the object of the law being evi
dently to let each side have an opportunity of commenting on the evidence of
the other, and not to give an additional advantage to the prosecutor in such a
case as the present. Hurry Churn Chuckerbutty v. The Empress, I. L. R., 10
Cal , 140 (1883).
293. (/) Whenever the Court thinks that the jury or as- ^£j£siuTy 01
sessors should view the place in which the offence charged is al
leged to have been committed, or any other place in wnich any
other transaction material to the trial is alleged to have occurred,
the Court shall make an order to that effect, and the jury or as
sessors shall be conducted in a body, under the care of an officer
of the Court, to such place, which shall be shown to them by a
person appointed by the Court.
(5) Such officer shall not, except with the permission of the
Court, suffer any other person to speak to, or hold any communi
cation with, any of the jury or assessors, and, unless the Court
otherwise directs, they shall, when the view is finished, be immedi
ately conducted back into Court.
If a Sessions Judge should think it necessary to visit the place of the Local enquiry
alleged occurrence of an offence under trial, he should give notice to the parties w ithoul notice,
and the assessors. He should not go without such notice, and after the trial
has been completed by delivery of the opinion of the assessors. Oudh Behari
Naratn Singh (appellant), 1 Cal. L. R., 143 (1877).
24
Proceedings in Prosecutions. [Ch. XXIII.
View by awes- In cases of view by assessors of the scene of the alleged offence, it was
•°r'- held that the Judge could not delegate his own function of examining wit
nesses on the spot to the assessors, who cannot, under section 348 of the
Code of Criminal Procedure, 1861, speak to or communicate with any other
person than the officer appointed to conduct them to the place. Queen v.
Chutterdharee Singh, 5 W. R., 59 (1866).
■iiaSnrnn!ij0t 294. If a juror or assessor is personally acquainted with
beeiamined. any relevant fact, it is his duty to inform the Judge that such is
the case, whereupon he may be sworn, examined, cross-examined
and re-examined in the same manner as any other witness.
2S7tort£Sd* 295. If a trial is adjourned, the jury or assessors shall
at adjourned attend at the adjourned sitting, and at every subsequent sitting,
until the conclusion of the trial.
Locking up 296. The High Court may, from time to time, make rules
3"ry' as to keeping the jury together during a trial before such Court
lasting for more than one day ; and, subject to such rules, the
presiding Judge may order whether and in what manner the jurors
shall be kept together under the charge of an officer of the Court,
or whether they shall be allowed to return to their respective
homes.
p.— Conclusion of Trial in Cases tried ly .Jury.
charge to jury; 297. In cases tried by jury, when the case for the defence
and the prosecutor's reply (if any) are concluded, the Court shall
proceed to charge the jury, summing up the evidence for the pro
secution and defence, and laying down the law by which the jury
are to be guided.
Misdirection of Three persons, who were attacked and wounded in an affray, informed
trial—Burma the police on the same day that the persons who had attacked them were A,
Courts Act of B, and C. Eighteen days afterwards the same complainants gave to the Magis-
1875, section trate enquiring into the case the names of four other persons whom they said,
to^l^lecourt." w'tn t'ic 'hrce persons first accused, formed the attacking party. The seven
' accused were tried jointly for the offence before the Additional Recorder of
Rangoon and a jury. In his charge to the jury the Additional Recorder
omitted to call their attention to the fact that four out of the seven accused
had not been mentioned by the prosecutors until after eighteen days had
passed over. The prisoners were convicted. Held, that the Additional Re
corder misdirected the jury ; that under the circumstances the misdirection
prejudiced the four persons last accused ; and that the verdict must be set
aside as far as they were concerned. Leiu Tu v. Queen-Enqtrest, I. L. R., 11
Cal., 10 (1884).
Depositions In the proceedings before a Magistrate on a charge of causing grievous
{^te -Witness hurt, two (among other) witnesses, one of whom was the person assaulted,
dying or ab- were examined on behalf of the prosecution. The prisoners were committed
Chanrelo"' v injuries
Om^s?on°to'r'V" ôr *r'a'-inflicted
Subsequently
on him. theAt person
the trialassaulted
before thedied, in consequence
Sessions of the
Judge, charges of
notice evidence murder and of culpable homicide not amounting to murder were added to
of?iu-'vmantl0n 'he charge of grievous hurt. The deposition of the deceased witness was
put in and read at the Sessions trial : I/eltl, that the evidence was admissible
either under section 32, clause 1, or section 33 of the Evidence Act, notwith
standing the additional charges before the Sessions Court.
Ss. 294-298.] Proceedings in Prosecutions. 37i
The question whether the proviso to section 33 of the Evidence Act is

applicable —that is, whether the questions at issue are substantially the same,
depends upon whether the same evidence is applicable, although different
consequences may follow from the same act. At the trial it was proved
that the other witness who had been examined before the Magistrate had
disappeared, and that it has been found impossible to serve hiin with a
summons. His deposition was put in and read. Held, that it was properly
admitted under section 33. In summoning up the case to the jury, the Judge
omitted to call their attention to the evidence of the witnesses for the defence.
This evidence appeared to the High Court to be untrustworthy. Held, that
the summing up was not defective on account of this omission on the part
of the Judge. The fact that a person is a clerk in the office of the Magis
trate of the district is not sufficient to disqualify him from sitting on a jury.
The Empress v. Rochia Mohato, I. L. R., 7 Oil., 42 (1881).
In charging a jury, a Judge is not bound to do more than lay carefully Judgo's chaw
and plainly before them the evidence as recorded by him, noting discre- t0 1>ai''
pancies and inconsistencies, and pointing out generally the way in which it
is favorable or unfavorable to accused. The Queen v. Chunder Kumar
ifozoomdar, 25 W. R., 54 (1876).
A Judge ought not to introduce into his direction to the jury any ques- Sururuing up to
tion as to recommending a prisoner to mercy, but should leave that entirely J^cnitioiMo
to the jury. The Queen v. Dassu Mosulnumy, 14 W. 11., 46 (1870). mercy.
In charging a jury, a Sessions Judge should not tell them that the Chaiyc to jury,
prisoners had previously been bad characters. That fact might be taken
into consideration by a Sessions Judge in passing sentence when the prisoners
arc convicted. Queen v. Kulum. Sheikh, 10 \V. R., 3'J (1868).
Whore there is uo evidence against a prisoner, the Judge ought to charge Charge to jury,
the jury for an acquittal, and not leave the jury to say whether the prisoner
is guilty or not. Queen v. Greedhari/ Manjee, 7 W. R., 30 (1867).
298- (/) In such cases it is the duty of the Judge — Duty ot Judge.
(a) t:> decide all questions of law arising in the course of

the trial, and specially all questions as to the relevancy
of facts which it is proposed to prove, and the admissi
bility of evidence <>r the propriety of questions asked by
or on behalf of the parties ; and, in bis discretion, to
prevent the production of inadmissible evidence, whether
it is or is not objected to by the parties ;
(6) to decide upon the meaning and construction of all docu

ments given in evidence at the trial ;
(c) to decide upon all matters of fact which it may bo

necessary to prove in order to enable evidence of parti
cular matters to be given ;
(d) to decide whether any question which arises is for him
self or for the jury, and upon this point his decision shall
bind the jurors.
372 Proceedings in Prosecutions [Ch. XXlII.
(2) The J udge may, if lie thinks proper, in the course of

his summing up, express to the jury his opinion upon any question
of fact, or upon any question of mixed law and fact, relevant to
the proceeding.
Illustrations.
(it) It is proposed to prove a statement made by a person not
being a witness in the case, on the ground that circumstances are proved
which render evidence of such statement admissible.
It is for the Judge, and not for the jury, to decide whether the
existence of those circumstances has been proved.
(b) It is proposed to give secondary evidence of a document the
original of which is alleged to have been lost or destroyed.
It is the duty of the Judge to decide whether the original has been
lost or destroyed.
Jury—Verdict— The accused was tried for rape. The jury, after considering their ver-
DutyoVJiuijre. announced through their foreman that the accused " did the act with
consent." The Sessions Judge thereupon, without requiring them to re-con
sider their verdict or giving them any fresh directions, asked them whether
they found the accused guilty or not guilty, The jury again retired and
brought in a verdict of guilty, upon which the Sessions Judge sentenced the
prisoner to three years' rigorous imprisonment. Held, reversing the conviction
• and sentence, that the first verdict of the jury being a special verdict, and
there being no real ambiguity about it, the Sessions Judge was bound under
section 302 of the Code of Criminal Procedure, 1882, to record the verdict
and apply the law thereto. Held, also, that the second verdict could not be
sustained, as there was nothing to show that the Sessions Judge gave the jury
any fresh directions, or explained to them that a finding that the woman had
consented was tantamount to an acquittal. Queen-Empress v. Madhavruo,
I.-L. R., 19 Boin., 735 (1894).
Accomplice - Case in which, upon review, a certificate having lieen granted by the Ad-
Corrobomiioii— vocate-Qeneral under section 26 of the Letters Patent, a conviction was
tion ofTvidcnce quashed on the ground of improper reception of evidence and misdirection.
—Misdirociioii— The accused being upon his trial at the Sessions for murder, the two principal
(Yof1i872).Awc-. witnesses for the prosecution were G and M, to whom pardons were tendered
lions lli.'lllus- by the committing Magistrate under section 337 of the Criminal Procedure
tratiouC'MiW. fjoile, and who had accepted the pardons. The Judge read to the jury state
ments (which had not been admitted in evidence) by G and M, purporting
to have been taken under section 364. Held, that the improper reception of
such evidence constituted a decision erroneous in point of law calculated to
prejudice the prisoner. The Judge further charged the jury that they were
not to convict upon the evidence of G if satisfied that he was an accomplice
and uncorroborated, but coupled the direction with a strong expression of
opinion that G was not an accomplice Held, that this constituted a mis
direction in fact, though not in form, calculated seriously to prejudice the
prisoner's case. The Queen-Empress v. O'Hara, I. L. It., 17 Cal , 642
(1890).
Evklenccof ao- A Judge should caution a jury not to accept the evidence of an approver
roiwniiioiT—Mis- unless it is corroborated : the omission to do so amounts li< misdirection.
(Unction to jury; Queen-Empress v. Arumuga, I. L. R., 12 Mad., 196 (1H88),
A jury, after retiring, returned to the box, and, after unanimously Duty of Judge
finding both prisoners not guilty of the charges framed against them, stated J^'^V/certam
to the Judge that they thought an offence had been committed by one of as to the offence
the
cableprisoners, but were
to his case ; the uncertain as to the section
Judge thereupon of the
made over Penala Code
to them appli-
copy of J?v'jjJ£{K!|<1~1j,lw"
the liYiemMn'
Penal Code, leaving them to decide under what section the offence fell, some parts ami
Held, that he had failed in his duty, and that he should have asked the ^n?* '"
jury what doubts they had as to the crime which had been committed, and
should have explained to them the law, and informed them what offence the
facts would prove against the prisoner if they believed those facts. Whore
the evidence at a trial is in part disbelioved, as to which part it is thought
that the witnesses had committed perjury, it is unsafe to accept the evidence
of those witnesses in other parts, and to convict the prisoner thereunder.
Jotpoth Singh v. Queen- Empress, I. L. R., 14 Cal., 164 (1886).
In the proceedings before a Magistrate on a charge of causing grievous Chaines added
hurt, two (among other) witnesses, one of whom was the person assaulted, Depî™"*-
were examined on behalf of the prosecution. The prisoners were committed before Mapia-
for trial. Subsequently the person assaulted died, in consequence of the (t1™J®_wi'"es!'
injuries inflicted on linn. At the trial before the Sessions Judge, charges ahTcondniK—
of murder and of culpable homicide not amounting to murder were added Charge to
to the charge of grievous hurt. The deposition of the deceased witness was j"rI*'07j^,l'**ioM
put in and read at the Sessions trial. Held, that the evidence was admissible evidence-
either under section 32, clause 1, or section 33 of the Evidence Act, notwith- Qualification*
standing the additional charges before the Sessions Court, The question 0 J"r>,n*"-
whether the proviso to section 33 of the Evidence Act is applicable—that
is, whether the questions at issue are substantially the same—depends upon
whether the same evidence is applicable, although different consequences
may follow from the same act. At the trial it was proved that the other •
witness who had been examined before the Magistrate had disappeared, and
that it had been found impossible to serve him with a summons. His
deposition was put in and read. Held, that it was properly admitted under
section 33. In summing up the case to the jury, the Judge omitted to call
their attention to the evidence of the witnesses for the defence. This
evidence appeared to the High Court to be untrustworthy. Held, that the
summing up was not defective on account of this omission on the part of»
the Judge. The fact that a person is a clerk in the office of tho Magistrate
of the district is not sufficient to disqualify him from sitting on a jury. Tlie
Emprett v. Roehia toohato, I. L. R., 7 Cal., 42 (1881).
In charging the jury upon the trial of a prisoner for being dishonestly Previous con-
in tho possession of stolen goods, the Judge directed the jury to consider vanT'^vifenee
the proof of previous convictions for theft as evidence from which inference of character—
might fairlyto be
amounted drawn as to ; the
a misdirection for character of the 54
though section accused.
of the Held, that Act
Evidence this P"
^VnSSimeut
'* ""e" '
declares that " the fact that the accused person has been previously con
victed of an offence is relevant," yet the same section also declares that " the
fact that he has a bad character is irrelevant," and that the evidence was
irrelevant and inadmissible. Except under very special circumstances the
proper object of using previous convictions is to determine the amount of
punishment to be awarded, -should the prisoner be convicted of the offence
Charged. Roshun Doosadh v. The Empress, I. L. R., 5 Calc, 768 (1880).
Section 133 of the Indian Evidence Act (No. I of 1872) in unmistakable Indian Evidence
terms lays it down that a conviction is not illegal merely because it proceeds ASt— A<"«>m-
upon the uncorroborated testimony of an accomplice, and to hold that
corroboration is necessary is to refuse to give effect to this provision. The
rule in section 114 of the Indian Evidence Act coincides with the rule
observed in England, that though the evidence of an accomplice should be
374 Proceedings in Prosecutions [Ch. XXIII.
carefully scanned and received with caution, and may be treated as un

worthy of credit, yet if the jury or the Court credits the evidence, a convic
tion proceeding upon it is not illegal. Reg. v. Rama Sami Padayachi,
I. L. R., 1 Mad., 394 (1878).
Jury—Miidirec- Where a Judge in his charge to the jury admitted, as receivable evidence,
Court't inter- a hearsay statement against the accused, and also an anonymous letter which
was put in without an attempt to show how or by whom it was sent, it was
held that the jury had been misdirected, and the accused prejudiced.
The Queen v. Chmider Koomar Mozoomdar, 24 W. R, 77 (1875).
Jury—Charge— The High Court set aside the verdict of a jury in this case, because
ProMcution— the Judge, in his direction to the jury, omitted to point out the absence of
explanation, evidence very material to the case of the prosecution, and because he direct
ed the jury to attribute an undue importance to the statements or excuses
made by the prisoner in the explanation of certain documents. The Queen
v. Gunga Gavind Palit, 23 W. R., 21 (1875).
High Court— In a case tried by jury, the High Court has no power to go into the facts
evi3enoe-Abet- °' the ca8e 'n order to see whether or not the conviction was right, that
ment—Causing standing entirely upon the verdict of the jury. The Court has only to con-
con[esB?oneiorrt s'êr 'ne f"0'8! ,n order to see whether the Judge has done his duty in laying
information. the case before the jury for their consideration. Points out how the Sessions
Judge's summing up to the jury should be dealt with by the High Court, first
as regards the law, and then as regards the facts. It is not necessary, under
section 194 of the Penal Code, that the false evidence which is given should
be evidence given in a Court of Justice. Such statement, if made to a police-
officer, would amount to the offence of giving false evidence as defined by
section 191, taking section 118 of the Code into consideration. A charge
may be made under section 330 of causing hurt for the purpose of extorting
information which might lead to the detection of an offence, even if the
supposed offence has not been committed. The offence which that section
intended to describe is that of inducing a person by hurt to make a statement,
or a confession, having reference to an offence or misconduct ; and whether
that offence or misconduct has been committed is wholly immaterial. In order
to convict a person of abetting the commission of a crime, it is not only
necessary to prove that he has token part in those steps of the transaction
which are innocent, but in some way or other it is absolutely necessary to
connect him with those steps of the transaction which are criminal. There
can be no offence of the abetment of giving false evidence unless the person
charged with abetment intended, not only that the statement should be made,
but intended that the statement should be made falsely. The Queen v. Nim
Chand Mookerjee, 20 W. R., 41 (1873).
Wrong verdict Where a jury convicted a prisoner contrary to the charge of the Sessions
—High Court. Judge, which charge was held by the High Court to have been a proper
charge, the High Court refused to interfere, although it concurred with the
Sessions Judge in thinking that the verdict of the jury was not correct. The
case was one in which an application could be made to the Government; but
as regards the Court, the petitions were rejected. The Queen v. Nidheeram
Bagdee, 18 W. R., 45 (1872).
Charge to jury." ^ Judge has every right to draw the attention of the jury to anything
" which appears to be a palpable alteration or blot on the face of a document
alleged to be forged. Queen v. Kissoree ilohun Dutt, 17 W. R., 58 (1872).
Miniirection— Conviction and sentence set aside (Glover, J., dissenting), as to two of
Evidence ol the prisoners, on the ground that there was a misdirection to the jury, because
Accomplice— the Judge in summing up omitted to advise the jury not to convict upon the
Corroboration.
uncorroborated evidence of an approver, and because he treated as corrobora
tive that which was no corroboration in law. Queen v. Nawab Jan, 8 W. R,,
19 (1867).
299. It is the duty of the jury— 0( i^-
(a) to decide which view of the facts is true and then to
return the verdict which under such view ought, accord
ing to the direction of the Judge, to be returned ;
(6) to determine the meaning of all technical terms (other
than terms of law) and words used in an unusual sense
which it may be necessary to determine, whether such
words occur in documents or not ;
(c) to decide all questions which according to law are to be
deemed questions of fact ;
(<i) to decide whether general indefinite expressions do or
do not apply to particular cases, unless such expressions
refer to legal procedure or unless their meaning is as
certained by law, in either of which cases it is the duty
of the Judge to decide their meaning.
Illustrations,
(a) A is tried for the murder of B.
It is the duty of the Judge to explain to the jury the distinction
between murder and culpable homicide, and to tell them under what
views of the facts A ought to be convicted of murder, or of culpablo
homcide, or to be acquitted.
It is the duty of the jury to decide which view of the facts is true,
and to return a verdict in accordance with the direction of the Judge,
whether that direction is right or wrong, and whether they do or do
not agree with it.
(6) The question is whether a person entertained a reasonable
belief on a particular point—whether work was done with reasonable
skill or due diligence.
Each of these is a question for the jury.
300. In cases tried by jury, after the Judge has finished his ^^{5™nt 18
charge, the jury may retire to consider their verdict. Except
with the leave of the Court, no person other than a juror shall
speak to, or hold any communication with, any member of such
jury.
301. When the jury have considered their verdict the fore-5£1tiverJ,°fvcr"
man shall inform the Judge what is their verdict, or what is the '
verdict of a majority.
302. If the jury are not unanimous, the Judge may require Procedure
them to retire for further consideration. After such a period as fc£ere j,uy m'
the Judge considers reasonable, the jury may deliver their ver
dict, although they are not unanimous.
Jury—Verdict— The accused was tried for rape. The jury, after considering their ver-
"Dutv'uf J*ui'Ct l''ct' announced through their foreman that the accused " did the »ct with
consent. " The Sessions Judge thereupon, without requiring them to re
consider their verdict or giving them any fresh directions, asked them whe
ther they found the accused guilty or not guilty. The jury again retired and
brought in u verdict of guilty, upon which the Sessions Judge sentenced the
prisoner to three years' rigorous imprisonment. Held, reversing the convic
tion and sentence, that the first verdict of the jury being a special verdict,
and there being no real ambiguity about it, the Sessions Judge was bound,
under section 302 of the Code of Criminal Procedure, 1882, to record the
verdict and apply the law thereto. Held, also, that the second verdict could
not be sustained, as there was nothing to show that the Sessions Judge gave
the jury any fresh directions, or explained to them that a finding that
the woman had consented was tantamount to an acquittal. Queen-Empress v.
Aladhavrao, I. L. B., 19 Bom, 735 (1894).
tTnaninous ver The accused were charged under section 149, coupled with section 326
dict—Distent of
Judê—Proce of the Penal Code, with, while being members of an unlawful assembly, com
dure in inch mitting grievous hurt. The jury disbelieved the evidence as to the unlawful
cane* assembly, but unanimously found two of the accused guilty of grievous hurt
under section 325. Held, that such verdict was, under section 457 of the
Code of Criminal Procedure, legally sustainable, although that offence did
not form the subject of a separate charge. Section 457 enables a verdict to
be given on some of the facts which are a component part of the original
charge, provided that those facts constitute a minor offence. It is only in a case
where the jury are not unanimous that a Court may require them to retire for
further consideration. Where a verdict is unanimous, it must be re
ceived by the Judge, unless contrary to law. Where a Judge dissents from
the unanimous finding of a jury given in accordance with the law, the only
procedure open to him to follow is that laid down in the fifth clause of sec
tion 263 of the Code of Criminal Procedure, 1872. The Government of
Bengal v. Mahaddi, I. L. B., 5 Cal.. 871 (1880).
High Court, Where the jury acquitted the prisoners on the charges framed, but found
power of— Jury, certain facts which amounted to another offence, and omitted to convict the
verdict of ac prisoners of that offence, as provided by section 457 of the Criminal Proce
quittal by.
dure Code, 1872, held, that the High C"urt could, on the case coming before
them under section 263 of the Criminal Procedure Code, find the prisoners
fiilty of such offence. The Empress v. Ilarai Mirdha and Umed Sardar,
L. B., 3 Cal., 189 (1877).
Verdict to I* 303> (1) Unless otherwise ordered by the Conrt, the jury
be given on
each charge— shall return a verdict on all the charges on which the accused is
Judge mayque* tried, and the Judge may ask them such questions as are necessary
tiou jury.
to ascertain what their verdict is.
Questions and (2) Such questions and the answers to them shall be recorded.
answer* to be
recorded.
Meaning of the A was tried on a charge (1) of murder, (2) of abetting B to commit the
word " chargrt " said murder. The jury, having considered their verdict, were asked by the
-Addition of Clerk of the Crown if they were agreed . The foreman replied that they were,
itltarge at trial- and that their verdict was guilty, and when further asked he said " guilty of
Altering charge
- Substitution oi abetment—of abetment generally." On the application of counsel for the
rharge- Omis prosecution a charge was then added of " abetment of murder committed by
sion to read and
fiplain charge some person or persons unknown." The additional charge was read aloud to
to prisoner. the jury, but was not specially explained to the prisoner, nor was he called
upon to plead to it. Counsel for the prisoner was asked by the Judge if he
desired to have a new trial on the charge as amended, but he declined. The
three charges (». e., the two original charges and the additional charge) were
then read to the jury, who after deliberation returned a verdict of " not guilty"
on charges Nos. 1 and 2, and of " guilty " on charge No. 3, viz., of abetment
of murder by a certain person or persons unknown. On the application of
counsel for the prisoner the following points were reserved : — (1) whether, under
the circumstances, the Court had power to add a new charge ; (2) whether the
verdict returned on the newcharge was valid, the prisoner not having been called
on to plead to it. Held (Scott, J., dissenting), that the Judge was wrong in
framing a new charge in addition to the original charges. The error, however,
was one of form and not of substance, and under section 537 of the Code of
Criminal Procedure, 1882, the Court declined to interfere with the conviction.
Held, also, that the power exercised by a Court sitting as a Court to decide
questions of law reserved in criminal cases under section 434 of the Code is
the power of review, and the Court is a Court of reference and revison. Held,
that the omission to read and explain the charge to the prisoner did not, under
the circumstances, prejudice the prisoner, and was therefore immaterial.
Queen-Empress v. Appti Subhana Mendre, I. L. R., 8 Bom., 200 (1884).
Although section 303 of the Code of Criminal Procedure, 1882, empowers Questioning
a Judge to ask the jury such questions as are necessary to ascertain what their jury m to vtr-
verdict is, it was never contemplated that, on ascertaining that the jury was dict-
not unanimous, the Judge should make minute enquiries to learn the nature of
the majority and its opinion, so that he should have the opportunity of
accepting or refusing that opinion as a verdict according as it coincides with
his own opinion or not. Whatever may be the opinion of the Judge, if he
goes so far as to ask the jury what is the exact majority, and what is the
opinion of the majority, he ought to receive that verdict without hesitation, and
if he differs from it lie should proceed as directed by section 307. A pri
soner, or his counsel, is at liberty to offer evidence or not, as he thinks proper,
and no inference unfavourable to him can be drawn because he takes one
course rather than another. Hurry Churn Chuckerbutty v. The Empress, I. L.
K., 10 Cal., 140 (1883).
Notwithstanding the large discretionary powers vented in the High Cour1 Verdict of jury
under section 263 of the Code of Criminal Procedure, 1872, the Court will ^t^^J^
adhere generally to tho principle of the Courts in England, viz , that the Court quittafby jury
will not set aside the verdict of a jury unless it be perverse and potently wrong, ~~Diwurreement
or may have been induced by the error of the Judge ; and where the* Court is h} J,ldge-
asked to do so on the ground that the verdict is against tho weight of evid
ence, the question is not whether the learned Judge who tried the case was
or was not dissatisfied with the verdict, or whether ho would have come to
the same conclusion as the jury, but whether the verdict was such as reason
able men ought to have come to. Where a person, in the course of an action
brought against him to gain possession of a property, uses a forged document
for the purpose of supporting his title, though there may be no necessity for
the use of it, such a user is clearly fraudulent. A general intention to defraud,
without the intention of causing wrongful gain to one person or wrongful loss
to another, would, if proved, be sufficient to support a conviction : and such
an intention is a necessary inference. The Empress v. Dhunnm Kazee, I. L.
It., 9 Cal., 53 (1882).
The accused were charged under section 149, coupled with section 32^, of Verdict on of*
the Penal Code, with, while being members of an unlawful assembly, commit- '*nce proved
ting grievous hurt. The jury disbelieved the evidence as to the unlawful dependenHym"
assembly, but unanimously found two of the accused guilty of grievous churned—un-
hurt under section 325. Held, that such verdict was, under section 457 of the "'DKt or'''''
Code of Criminal Procedure, 1872, legally sustainable, although that offence did Judire—Pro-
not form the subject of a separate charge. Section 457 enables a verdict to be cedure »»cl>
given on some of the facts which are a component part of the original charge, case'"
provided that those facts constitute a minor offence. It is only in a case
378 Proceedings in Prosecutions [Ch. XXIII.
where the jury are not unanimous that a Court may require them to retire for
further consideration. Where a verdict is unanimous, it must be received by
the Judge, unless contrary to law. Where a Judge dissents from the unani
mous finding of a jury given in accordance with the law, the only procedure
open to him to follow is that laid down in the fifth clause of section 263 of
the Code. The Government of Bengal v. Muhaddi, I L. R., 5 All., 871
(1880).
Jury—Verdict— 1° a ease in which the accused was tried on charges of murder, culpable
Reference. homicide, and causing grievous hurt, the jury acquitted him of murder, but
convicted him on the other counts. This verdict was recorded by the Sessions
Judge, who then, in accordance with section 263, Code of Criminal Procedure,
1872, questioned the jury as to the grounds for their verdict, and the jury
eventually intimated their willingness to convict of murder. The Sessions
Judge differed from the first verdict of the jury, but as he had recorded the
first verdict, he doubted whether he could accept the second verdict, and re
ferred the case to the High Court under section 263. Held, that section
263 did not apply to such a case as this. There would be no verdict delivered
and no verdict finally recorded until the last of the questions put by the
Sessions Judge to the jury was answered ; and as it appeared from the answers
of the jury that their feelings of facts disclosed that the verdict ought to have
been one of guilty on the charge of murder, the Sessions Judge should have
entered the verdict of the jury as the verdict of guilty of murder. The case
was accordingly returned to the Sessions Judge to enable him to do that, and to
puss such sentence as the law directed. It is only when it is necessary, in
order to ascertain what the verdict of a jury reallv is, that a Judge is justified
under section 263 in putting questions to the jury. The Queen v. Suttiram
Mumlal, 21 W. R., 1 (1873).
Amending vcr. 304. When by accident or mistake a wrong verdict is de-
<i,ct' livered, the jury may, before or immediately after it is recorded,
amend the verdict, and it shall stand as ultimately amended.
verdict in High 305. (/ ) When in a case tried before a High Court the jury
prev«ii7he" t0 are unanimous in their opinion, or when as many as six are of one
opinion and the Judge agrees with them, the Judge shall give
judgment in accordance with such opinion.
(2) When in any such case the jury are satisfied that they
will not be unanimous, but six of them are of one opinion, the
foreman shall so inform the Judge.
Dtac iwrgeof (3) If the Judge disagrees with the majority, he shall at once
jury in other ■• i ii
dues. discharge the jury.
(4) If there arc not so many as six who agree in opinion,

the Judge shall, after the lapse of such time as he thinks reason
able, discharge the jury.
verdict in court 306. (i) When in a case tried before the Court of Session the
t°o prevail when Judge does not think it necessary to express disagreement with the
verdict of the jurors or of a majority of the jurors, he shall give
judgment accordingly.
(2) If the accused is acquitted, the Judge shall record judg

ment of acquittal. If the accused is convicted, the Judge shall
pass sentence on him according to law.
307. (I) If in any such case the Judge disagrees with the Procedure
verdict of the jurors, or of a majority of the jurors, on all or any ju'i^ dl^'r^S
of the charges on which the accused has been tried, and is clearly Wlth ver<"ot-
of opinion that it is necessary for the ends of justice to submit the
case to the High Court, he shall submit the case accordingly, re
cording the grounds of his opinion, and, when the verdict is one
of acquittal, stating the offence which he considers to have been
committed.
(2) Whenever the Judge submits a case under this section,
he shall not record judgment of acquittal or of conviction on any
of the charges on which the acoused has been tried, but he may
either remand the accused to custody or admit him to bail.
(3) In dealing with the case so submitted the High Court
may exercise any of the powers which it mav exercise on an
appeal, and subject thereto it shall, after considering the entire
evidence and after giving due weight to the opinions of the Sessions
Judge and the jury, acquit or convict the accused of any offence of
which the jury could have convicted him upon the charge framed
and placed before it ; and, if it c mvicts him, may pass such sen
tence as might have been passed by the Court of Session.
An offence under section 3G5 of the Penal Code is, within the meaning of " Minor ot-
section 238 of the Criminal Procedure Code, a minor offence as compared {f™*'J' ^"ôul
with offences under section 366 and section 376 of the Penal Code ; and the formal' charge"
High Court in dealing with a case under section 307 of the Criminal Proce
dure Code can convict an accused of the former offence without a formal
charge having been framed. Per Basekji, J. — The words " minor offence"
have not been defined by law : they are to be taken not in any technical sense,
but in their ordinary sense. Queen- Empress v. Sitanath Mandal, I. L. B.,
22 Cal., 1006 (1895).
The accused was tried for murder. The first verdict of the jury was Hiirn Court's
" guilty of murder under grave and sudden provocation." The Sessions Judge wiftth*
told the jury that it was their duty, after considering the question of provo- verdict of a
cation, to return a simple verdict of guilty or not guilty. The jury, there- iari'-
fore, brought in a second verdict of " not guilty." The Judge, considering
the verdict to be perverse, referred the case to the High Court under section
307 of the Code of Criminal Procedure, 1882. Held, that the discretion
given to the jury after the first verdict was wrong, as the case fell under
section 238 of the Code. Although the charge was only one of murder, the
jury had a right to bring in a verdict of culpable homicide, if there was grave
and sudden provocation so as to deprive the prisoner of the power of self-
control. Held, also, that the jury were not bound to find a simple verdict
of guilty or not guilty. They might have found a special verdict or find
ings on matters of fact to which the Judge applies the law. Held, also,
that th« first was a verdict of murder, as the jury did not find that the pro
vocation had destroyed the power of Belf-control. It is not a necessary con
sequence of anger, or other emotion, that the power of self-control should be
lost. Except where unsoundness of mind or real fear of instant death is prov
ed, the preisure of temptation is no excuse for breaking the law. Held,
astly, that the High Court will not interfere with the verdict of a jury unless
it is shown to be clearly and manifestly wrong. A verdict ought to be con
sidered a proper and not a perverse verdict if it is one which reasonable men
might find on the facts in evidence. Queen-Empress v. Derji Govindji, I. L.
R., 20 Bom., 215 (1805).
Duty of 80s- The discretionary power to refer cases conferred on Sessions Judges by
to°referr?ues ™ t',e Criminal Procedure Code, section 307, should always be exercised when the
caM»trTed*vith Judge thinks that the verdict is not supported by the evidence. Queen-Em-
njury. press v. Guruvailu, I. L. R., 13 Mad., 343 (1800).
Trial by jury— ^ prisoner was tried for murder and acquitted by a majority of the jury.
Power "of Judno The Sessions Judge disagreed with the verdict and submitted the case to the
to put question* High Court under section 307 of the Criminal Procedure Code, 1882. The
section5 r-is'af- J|1('g°s of the High Court (Jardine and Can'dv, JJ.), differing in opinion,
tcr verdict deli- the case was laid before a third Judge (Sar<;ent, C. J.), under section 420,
veruMo7~Ipeci- w''° 'ie'^ t'lut t'10 vort''t't °f tne iury should be set aside and that the prison-
al vfrdict-Re- er was guilty of murder. Per Saruknt, C..J.—It is the uniform practice of
fereiicc to Hiith the High Court, in cases referred under section 307 of the Criminal Proce-
eectionSOT^ ('ure Code, 1882, not to interfere with the verdict of a jury, except when it is
Powor of HiftU clearly and manifestly wrong. There i3 no true analogy between the discre-
ferertwi?li,"ver- t'onary powers conferred on the High Court under this section aud that
diet—Judtcs of which the Courts of law in England have exercised in interfering with the
V'ff!' Co"rt • finding of a jury in civil actions by directing a new trial on the ground of
nion-ltef'-i-1'' the verdict being against the weight of evidence The practice, therefore, of
ence to thinl the latter Courts, although very properly regarded as a guide, cannot be resort-
sectiouT'!)6- eo- t0 as affording a fixed rule in the exercise of the powers conferred on
Letters Patent, the High Court by section 307. Where a prisoner was charged with
IMS, clause 30. murder by administering dhatura poison to the deceased, the majority of
the jury found him not guilty. After the delivery of the verdict the Ses
sions Judge questioned the jury, who, in reply to specific questions on
the points, stated through their foreman that the majority had doubts (1)
whether the accused had fetched dhatura from a certain field, (2) whe
ther there was dhatura poison in the stomach of the deceased, (3) whether
the death of the deceased was caused by dhatura poison. The Sessions
Judge differed so completely with the jury on the evidence that he submitted
the case to the High Court under section 307 of the Criminal Procedure Code,
1882. Per Jardine, J.—The verdict of acquittal should bo upheld. It was
not manifestly wrong or absolutely unreasonable. It was a verdict that rea
sonable but cautions men might find. The Sessions Judge ought not to have
put to the jury, after the verdict was delivered, the questions which he did put
as to their opinions on particular points. In so doing the Sessions Judge exceeded
the limits of questioning defined in section 303 of the Code. There was no in
completeness nor ambiguity in the verdict, and no misconception of any ques
tion of law. Per Candy, J.—Admitting in the present case that the Sessions
Judge was wrong in putting any question to the jury after the verdict was
delivered, disregarding the answers to the questions and dealing solely with
the evidence and probabilities, there seemed to be no reasonable doubt of the
guilt of the accused. The High Court in the exercise of its powers under
section 307 of the Code is bound to act upon its own view of the evidence.
On a reference 1>37 a Sessions Judge the whole case is opened up. When the
verdict of the jury is erroneous, the High Court must put it aside and exercise
the functions of both Judge and jury, giving due weight to the opinion
of the Judge as well as to the verdict of the jury. When a case like the
present depends upon the inferences to be drawn from two or three facts,
neither principle nor Statute forbids the Sessions Judge from asking the jury
to state a plain and concise finding on those facts. Where the Judges of the
High Court differed in opinion in a ease referred by a Sessions Judge to
the High Court under section 3'J7 of the Code, the Court (Jardine Rnd
S. 307.] Proceedings in Frosecutions.
CASDY JJ. ) directed that the case should he laid hefore a third Judge of the
High Court, being of opinion that the Code overrules the provisions of clause
3<i of the Letters Patent. 18G5. Queen-Empress v. Dada Alia, I. L. P., 15
Bom., 452 (1889).
In the exercise of its powers under section 307 of the Code of Criminal Verdict of iury—
Procedure, 1882, the High Court will form and act upon its own view of what ^.j"jX>f -
the evidence in its judgment proves ; but, in doing so, the opinion of the Hi^h Court, po-
Scssions Judge, no less than the verdict of the jury, is entitled to its proper wenot.
weight. Queen-Empress v. Ttitari Saho, I. L. II., 15 Cat., 209 (1887).
Tlie effect of clause 6 of section 8 of Act III of 1884 (Criminal Proee- Kuropcim Bii-
dure Code Amendment Act) is to confer upon the District Magistrate precisely Triin^'i'/stri^
the same authority as the Sessions Judge has, under section 307 of the Criminal jiaKistrato'vith
Procedure Code, to submit to the High Court a case in which he disagrees » jury-Proce-
with the verdict of a jury so completely that he considers a reference neces- by™ jury"—?»•
wary. The expression " trial by jury" us used in clause 6 of section 8 does not wer of 'District
only refer to proceedings up to the time when the jury pronounce their verdict, g'",'|jIs1tr,ltp fjjj',1
but refers generic-ally to cases triable with a jury as contradistinguished from verdict to sub
cases tried with the help of assessors, or in any other manner mentioned in the »)•' tne cale to
Criminal Procedure Code. No trial can be, legally speaking, concluded until p^wcrôftligli
judgment and sentence are passed, anil the trial of a case referred by a Court.
Sessions Judge to the High Court under section 307 of the Criminal Procedure
Code remains open for the High Court to conclude and complete, either by
maintaining the verdict of the jury and causing judgment of acquittal to be
recorded, or by setting aside the verdict of acquittal, and causing conviction
and sentence to he entered against the accused. The provisions of section 307
of the Criminal Procedure Code are not in any way cut down by sections 418
aud 423 : and the High Court has power, under section 307, to interfere with
the verdict of the jury where the verdict is perverse or obtuse, and the ends
of justice require that such perverse finding should he set right. The power
of the High Court is not limited to interference on questions of law, i.e.,
misdirection by the Judge or misapprehension by the jury of the Judge's
directions on points of law. Explanation IV of section 499 of the Penal Code
does not apply where the words used and forming the basis of a charge are
per se defamatory ; though when the meaning of words spoken or written is
doubtful, and evidence is necessary to determine the effect of such words, and
whether they are calculated to harm a particular person's reputation, it is
possible that the principle enunciated in the explanation might and would
with propriety be applied. Queen- Empress v. McCarthy, I. L. R., 9 All..
420 (1887).
Under the provisions of the Code of Criminal Procedure, 1882, no appeal Appeal by Local
at the instance of the Local Government lies from an order of acquittal in a Appcfunpon-
case which has been tried by a jury, when the questions involved are purely fnrufium vcr-
qucstions of fuel, for such ;in appeal to lie it must be supported upon a ground tlit'1 "' ™ 'ur'v-
which is covered by section 418. The Government 0/ Banjul v. Parmeshur
Mullicl; I. L. 1!., 10 Cal., 1029 (1884).
The accused were charged under section 149, coupled with section 325, J-"""^^^'^
of the Penal Code, with, while lwing members of an unlawful assembly, jud>e-I'r.re
committing grievous hurt. The jury disbelieved the evidence as to the un- dure in bucIi
lawful assembly, hut unanimously found two of the accused guilty of grievous C8!te»
hurt under section 325. Ifelil, that such verdict was, under section 457 of the
Code of Criminal Procedure, 1872, legally sustainable, although that offence
did not form the subject of a separate charge Section 457 enables a verdict
to be given on some of the facts which are a component part of the original
charge, provided that those facts constitute a minor offence. It is only in a
case where the jury arc not unanimous that a Court may require them to retire
for further consideration. Where a verdict is unanimous, it must be received
by the Judge, unless contrary to law. Where a Judge dissents from the una
nimous finding of a jury given in accordance with the law, the only proce
dure open to him to follow is that laid down in the fifth clause of section 263
of the Code of Criminal Procedure. The Government of Bengal v. Mahaddi,
I. L. R., 5 Cal., 871 (1880).
Trial by jury In a trial by a jury before a Court of Session upon charges some of which
of "which' "'ire were tria',,l! l)y a iUTi' anti 80me witl> the aid of assessors, the jury, by a majority
triable with the of four to one, returned a verdict of " not guilty" on all the charges. Held,
aid of assessors, that it was not competent to the Judge, who disagreed with the verdict, to
treat the trial, so far as it dealt with the latter charges, as a trial with the aid
of assessors, and concurring with the minority, to convict and sentence the
accused persons. It was the duty . of the Judge in such a case to have ac
cepted the verdict as one of acquittal, and then to have passed orders in
accordance with section 263 of the Code of Criminal Procedure, 1872. Bhoot-
nalh Dey, appellant, 4 Cal. L. It., 405 (1879).
Verdict— A" accused struck a woman, carrying an infant in her arms, violently
Disagreement over head and shoulders. One of the blows fell on the child's head causing
rora-D'issent of deatl1, HM. that the accused had committed hurt on the infant under cir-
Judgc from ver- cumstances of sufficient aggravation to bring the offence within the definition
dicU>fmajo- of grievous hurt. Where a jury are not unanimous in their finding, and the
Court, powers Judge dissents from the opinions expressed by them, on the case being referr-
of. ed under section 263 of the Code of Criminal Procedure, 1872, the High Court
is competent to find the prisoner guilty notwithstanding an acquittal by the
majority of the jury. It is the duty of a Judge in sending up a case to the
High Court under sections 263 and 464 of the Code, when he disagrees with a
verdict of acquittal, to state the offence which, in his opinion, has been com
mitted. The Empress v. Sahae Rae, I. L. R., 3 Cal., 623 (1878).
Dissent of The "dissent," referred to in the fourth clause of section 263 of the Crimi-
dicf"of'jurors?'" na' Procc''urL' Code, 1872, must be such a complete dissent as to lead the Judge
to consider it necessary for the ends of justice to summit the case to the High
Court, lmperatrix v. Bhawani Bin Paiiluji, I. L. R., 2 Bom., 525 (1878).
Verdict of Where there are reasons sufficient to warrant a jury in disbelieving the wit-
jury-Caae re» nesses and in giving the prisoner the benefit of the doubt raised by inconsisten-
rioM Jadm!*' c'es 'n '',u' ev>dence, although another jury might have come to a different
conclusion, the High Court will not interfere. It must be shown that the ver
dict of the jury is certainly unreasonable and perverse. 1h re Hurree Narain
Mookerjee, 2 Ca'. L. R., 518 (1878).
Trial by jur; — The Code of Criminal Procedure, section 263, casts upon the High Court
du-t'reve'-d" tne l'ut>' uot'1 of Judge and jury ; but notwithstanding this difference, which
clothes it with greater powers and responsibilities than the superior Courts in
England, it will, as far as may be, be guided by the principle of English law
that the verdict of a jury will not be set aside unless it be perverse and pa
tently wrong, or may have been induced by an error of the Judge. In a pro
per case, however, the High Court will rectify the verdict of a jury. Reg. v.
khanderav Bajirar, I. L. R., 1 Bom., 10 (1875).
Jury-Eefer> In a case in which the accused were charged with murder (section 302),
ence-High culpablc homicide not amounting to murder (section 304), and voluntarily
' causing grievous hurt (section 325), the Sessions Judge at the trial added a
further charge of house-breaking by night in order to the commission of an
offence (section 457). The jury unanimously acquitted the prisoner of the
three original charges, and a majority of the jury (four out of five) acquitted
them also of the last charge. The Sessions Judge agreed with the verdict of
the jury as regards the three original charges, and recorded a formal order,
acquitting and discharging the prisoners on these three charges. He differed
from the majority as to the fourth charge, and referred the case to the High
Court under section 263 of the Code of Criminal Procedure, 1872. Held, tliut
where (as in this case) the Sessions Judge lias approved of a verdict on certain
charges and finally acquitted and discharged the accused as to these charges,
the High Court cannot under section 263 convict on the facts on these very
charges. That section seems to contemplate only a case in which, without
recording any order oE acquittal or conviction, the Sessions Judge refers the
whole case. As there was nothing in this case to show on what grounds the
majority of the jury acquitted the prisoners on the additional charge, and as
the Sessions Judge agreed with the unanimous verdict as to the three original
charges, the High Court presumed that the reason which weighed with the
majority of the jury in finding the prisoners not guilty on the additional
charge must have weighed with the whole jury in finding them not guilty on
all the three other charges, and accordingly the Court could not set aside the
verdict of the majority on the last count, without practically finding directly
in the teeth of the verdict of the unanimous jury on the first three counts. The
Queen v U.lya Changa, 20 W. R., 73 (1873).
G. — lielrial of Accused after Discharge of Jury.
308« Whenever the jury is discharged, the accused shall Re-triai of «c-
be detained in custody or on bail (as the case may be), and shall cli«rge*o?lju1y."
be tried by another jury, unless the Judge considers that he should
not be re-tried, in which case the Judge shall make an entry to that
effect on the charge, and such entry shall operate as an acquittal.
//. — Conclusion of Trial in Cases tried with Assessors.

309. (1) When, in a case trieJ with the aid of assessors, the Delivery of opi-
case tor the defence and the prosecutes reply (it any) are con- So™." of
eluded, the Court may sum up the evidence for the prosecution
and defence, and shall then require each of the assessors to state
his opinion orally, and shall record such opinion.
(2\ The Judge shall then give judgment, but in duing so Judgment,
shall not be bound to conform to the opinions of the assessors.
(<3) If the accused is c mvicted, the Judge shall pass sentence

on him accjrding to law.
Where in a trial for murder held with assessors the Court relied on a Assessors, state-
statement made by the deceased, and the evidence necessary to prove such JJj^Jj' [J^085*^
statement was not recorded until after the close of the trial and the discharge proved in their
of the assessors : Held, that this amounted to a material irregularity which presence,
was not covered by section 537 of the Code of Criminal Procedure, 1882.
Queen-Empress v. Ram Lall, I. L. K., 15 All., 136 (1893).
The power of summing up the evidence given by section 300 of the Summing up of
Code of Criminal Procedure, 1882, is intended to be exercised in long or in- *^j.*'.0"/" oîtif'! h
tricate cases, and the Sessions Judge should confine himself to summing up o/nssessors—°"*
the evidence, and should not obtrude on the assessors his opinion of the worth- Sessions Judge,
leisness or otherwise of certuin portions of the evidence. The Sessions Judge d,,,ies °'-
should also conform strictly to the words of section 300, and require each
assessor to state his opinion orally. The Sessions Judge should not utilize the
services of the pleader for the proseeutiou for the purpose of recording his
384 Proceedings in Prosecutions. [Ch. XXI 1 1.
summing up to the assessors. If lie is not capable of recording the substance
of it liiinsclf, be should employ an independent person for that purpose.
Shadulla llowladar v. The Empress, I. L. R., 9 Cal., 875 (1883).
TriaLsy Although the Code of Criminal Procedure. 1861, does not expressly provide
jm Humming for a summing up of the evidence in trials with the aid of assessors, there is
nothing in the Court to prevent a Judge fromsumming up the evidence, which
is, in fact, only a mode of going through and discussing it with the assessors.
The real object of appointing assessors is to assist the Court, and the discus
sion and statement of points by u Judge sitting with assessors cannot be said
to be otherwise than in furtherance of the object of getting the best assist
ance for the proper adjudication of the case. The Queen v. A iiieerothleeii,
15 W. 25 (1871).
Ground* of Assessors ought to give the grounds of their opinion, particularly when
opinion by assc- thc difft.r jn opjnjon from t],e JudgCi QMen Vi Jiushmv Aneut, 8 W. 1!.,
21 (18G5).
Opinion of The ground of each assessor's opinion should be distinctly recorded by
aswssori,. ,|,e judge. Qwen v Muetammat Mina, 3 W. B., (5 (1805).
L—Procedure in Case oj Previous Conviction.
JSpreviou. 310 • 1,1 tl)e 088(5 of a trial byjary or with the aid of asses-
conYictton. sors, where the accused is charged witli an offence committed after
a previous conviction fur any offence, the procedure laid down
in sections 271, 286, P>05, 30G and ,'JOD shall he modified as fol
lows : —
(«) the part of the charge stating the previous conviction

shall not he read out in Court, nor shall the accused he
asked whether he has heen previously convicted as al
leged in the charge unless and until he has either pleaded
guilty to, or heen convicted of, the suhsequent offence :
(b) if he pleads guilty to, or is convicted of, the suhsequent
offence, he shall then he asked whether lie has heen
previously convicted as alleged in the charge :
(c) if he answers that he has liecn so previously convicted, the
Judge may proceed to pass sentence on him accord
ingly ; hut, if he denies that he has heen so previously
convicted, or refuses to, or does not, answer such ques
tion, the jury, or the Court and the assessors (as the
case may he), shall then hear evidence concerning such
previous conviction, and in such case (where the trial is
by jury) it shall not be necessary to swear the jurors
again.
Records of j>re- Records of previous convictions should not lie put in until the close of
Hon* colmc' the trial, as they can only he used after conviction in determining the measure
of punishment. Queen v. Shiboo Mmidle, 3 W.R., 38 (180.5).
311 . Notwithstanding anything in the last foregoing section, ^^vie0u,d|Sn*
evidence of the previous conviction may be given at the trial for vjction may be
the subsequent offence, if the fact of the previous conviction is rele
viint under the provisions of the Indian Evidence Act,* 1872.
J.— List of Jurors for High Court, and summoning Jurors

for that Cniirt.
312. The names of not more than four hundred persons shall Number of sPe-
at any one time be entered in the special jurors' list.
313. (7) The Clerk of the Crown shill, before the first day ^£S3"non
of April in each year, and subject to such rules as the High Court j«rort.
from time to time prescribes, prepare —
(«) a list of all persons liable to serve as common jurors ; and
(/>) a list of persons liable to serve as special jurors only.
(2) Regard shall be had, in the preparation of the latter list,
to the property, character aud education of the persons whose
names are entered therein.
(3) No person shall be entitled to have his name entered in
the special jurors list merely b?cause he may have been entered
in the special jurors' list for a previous year.
(4) The Governor-General in Council in the case of the High
Court at Fort William in Bengal, and, in the case of other High
Courts, the Local Government, may exemp- any salaried officer of
Government from serving as a juror.
(5) The Clerk of the Crown shall, subject to such rules as Di»retiou of
aforesaid, have full discretion to prepare the said lists as seems to f,™ciiSis.preiwr
him to be proper, and there shall be no appeal from, or review of,
his decision.
314. (1 ) Preliminary lists of persons liable to ?erve as com- Publication, of
mon jurors and as special jurors, respectively, signed by the ry and revised.
Clerk of the Crown, shall be published once in the local official
Gaetzte before the fifteenth day of April next after their prepara
tion.
(2) Revised lists of persons liable to serve as common jurors
and special jurors, respectively, signed as aforesaid, shall be pub
lished once in the local official Gazette before the first day of May
next after their preparation.
{3) Copies of the said lists shall be affixed to some conspi
cuous part of tho Court-house.
• Act I of 187S.
26
386 Proceedings in prosecutions. [Ch. XXIII.
Number ol 315. (1) Out of the persons named in the revised lists afore-
juroratobesuiii- . there
moned in presi- said, , V '„ .be summoned
shall 1 , tor
~ each , sessions
• i presiden-
in eacn
denry-towns. cy_town at jeagt twenty-seven of those who are liable to serve on
special juries, and fifty-four of those who are liable to serve on
common juries.
(2) No person shall be so summoned more than once in six
months unless the number cannot be made up without him.
fummon»ntl,fy (?) ^» during the continuance of any sessions it appears that
the number of persons so summoned is not sufficient, such number
as may be necessary of other persons liable to serve as aforesaid
shall be summoned for such sessions.
Summoning 316. Whenever a High Court has given notice of its in-
ths pnSdMcy- teution to hold sittings at any place outside the presidency-towns
town*- for the exercise of its original criminal jurisdiction, the Court of
Session at such place shall, subject to any direction which may
be given by the High Court, summon a sufficient number of
jurors from its own list, in the manner hereinafter prescribed for
summoningjurors to the Court of Session.
Military jurortf 317. (/) In .addition to the persons so summoned as jurors,
the said Court of Session shall, if it thinks needful, after com
munication with the commanding officers, ciuse to be summoned
such number of commissioned and non-commissioned officers in
Her Majesty's Army resident within ten miles of its place of sit
ting as the Court considers to be necessary to make up the juries
required for the trial of persons charged with offences before the
High Court as aforesaid.
(2) All officers so summoned shall be liable to su-ve on such
juries notwithstanding anything contained in this Code ; but no
such officer shall be summoned whom his commanding officer
desires to have excused on the ground of urgeut military duty, or
for any other special military reason.
failure ofjurors 318. Any person summoned under section 315, section 316
to«t«md. 0J. sectjon wn0) wJtl,out lawful excuse, fails to attend as
required by the summons, or who, having attended, departs with
out having obtained the permission of the Judge, or fails to attend
after an adjournment of the Court after being ordered to attend,
shall be deemed guilty of a contempt and be liable, by order of the
Judge, to such fine as he thinks fit ; and, in default of payment of
such fine, to imprisonment for a term not exceeding six months in
the civil jail until the fine is paid :
Provided that the Court may in its discretion remit any fine
or imprisonment so imposed.
Ss. 315-320.] Proceedings in Prosecutions. 3#7
K.— List 0} Jurors and Assessors/or Court of Session, and

summoning Jurors and Assessors for thai Court.
319. All male persons between the ages of twenty-one and Lmbiliijr to
sixty shall, except as next hereinafter mentioned, be liable to serve or hsksko™.
as jurors or assessors at any trial held within the district in which
they reside,
or, if the Local Government, on consideration ot local cir
cumstances, has fixed any smaller area in this behalf, within the
area so fixed.
320* The following persons are exempt from liability to EiemPtion«.
serve as jurors or assessors, namely : —
(a) officers in civil employ superior in rank to a District
Magistrate ;
(d) salaried Judges ;
(c) Commissioners and Collectors of Revenue or Customs ;
\d) police-officers and persons engaged in the Preventive
Service in the Customs Department ;
(e) persons engaged in the collection of the revenue whom
the Collector thinks fit to exempt on the ground of
official duty ;
(/) persons actually officiating as priests or ministers of their
respective religions ;
(y) persons in Her Majesty's Army, except when, by any law
in force for the time being, they are specially made liable
to serve as jurors or assessors ;
(A) surgeons and others who openly and constantly practise
the medical profession ;
(t) legal practitioners (as defined by the Legal Practitioners
Act,* 1879J, in actual practice ;
(/) persons employed in the Post-office and Telegraph
Department ;
(&) persons exempted from personal appearance in Court
under the provisions of the Code of Civil Procedure,
sections 640 and 641 t ;
• No. XVIII of 1879.
t S. 640 —Exemption of women, who, accor.ling to the customs and manners
of the country, ought not to be compelled to appear in public.
S. 641.—Exemption bj Local Government of persons whose rank, in the
opinion of such Government, entitles him to the privilege of exemp-
(/) other persons exempted by the Local Government from

liability to serve as jurors or assessors.
»nd °' mn"1 • O ^*he Sessions Judge, and the Collector of the
»n assessors, Ji^^ or guc^ 0tJjer 0fficer as tue Local Government appoints
in this behalf, shall prepare and make out in alphabetical order a
list of persons liable to serve as jurors or assessors and qualified
in the judgment of the Sessions Judge and Collector or other offi
cer as aforesaid to serve as such, and not likely to be successfully
objected to under section 278, clauses (b) to (A), both inclusive. "
(2) The list shall contain the name, place of abode and quali
ty or business of every such person ; and, if the person is an Eu
ropean or an American, the list shall mention the race to which he
belongs.
^Publication «>f 322. Copies of such list shall be stuck up in the office of
the Collector or other officer as aforesaid, and in the court-houses
of the District Magistrate and of the District Court, and extracts
therefrom in some conspicuous place in the town or towns in or
near which the persons named in the extract reside.
objections to 323. To every such copy or extruct shall be subjoined a
notice stating that objections to the list will be hoard anil deter
mined by the Sessions Judge and Collector, or other officer as
aforesaid, at the sessions court-house, and at a time to be men
tioned in the notice.
Revision of list. 324. (2) For the hearing of such ob jections the Sessions
Judge shall sit with tli3 Collector or other officer as aforesaid, and
shall, at the time and place mentioned in the n.itice, revise the
list and hear the objections if any ) of persons interested in the
amendment thereof, and shall strike out the name of any person
not suitable in their judgment to serve as a jur.»r or as an assessor,
or who may establish his right to any exemption from service
given by section 820, and insert the name of any person omitted
from the list whom they deem qualified for such service.
(2) In the event of a difference of opinion between the

Sessions Judge and the Collector or other officer as aforesaid, the
name of the proposed juror or assessor shall be omitted from the
list.
(3) A copy of the revised list shall be signed by the Ses
sions Judge and Collector or other officei" as aforesaid and sent to
the Court of Session.
(4) Any order of the Sessions Judge and Collector or other
officer as aforesaid in praparing and revising the list shall be final.
(5) Any exemption not claimed under this section snail be

deemed to be waived until the list is next revised.
{6j The list so prepared and revised shall be again revised Annuel
once in every year.
(7) The list so revised shall be deemed a new list, and shall
be subject to all the rules hereinbefore contained as to the list
originally prepared.
325. In the case of any district for which the Local Go- preparation of
vermnent has declared that the trial of certan offences shall, if f'mr?. "peem
the Judge so direct, be by special jury, the Sessions Judge and
tho Collector of such district or other officer as aforesaid shall
prepare, in addition to the revised list hereinbefore prescribed, a
special list containing the names of such jurors as are borne on
the revised list and are, in the opinion of such Sessions Judge and
Collector or other officer as aforesaid, by reason of their possess
ing superior qualifications in respect of property, character or
education, fit persons to serve as special jurors : rrovided always
that the inclusion of the name of any person in such special list
shall not involve the removal of his name from the revised list
nor relievo uim of his liability to serve as an ordinary juror in
cases not tried by special jury.
326* (i ) The Sessions Judge shall ordinarily seven days District M«i*-
at least before the day which he may from time to time fix for JjJSrfjuroreand
h dding the sessions, send a letter to the District Magistrate request- »•«•»*>*■«
ing him to summon as many persons named in the said revised
list or the said spacial list as seem to the Sessions Judge to be
needed for trials by jury and trials with the aid of assessors at the
said sessions, the number to be summoned not being less than
d mble the number required for any such trial.
(2) The names of the persons to be summoned shall be drawn

by lot in open Court, excluding those who have served within six
months, unless the number cannot be made up without them ;
and the names so drawn shall be specified in the said letter.
For form of precept to District Magistrate to summon Jurors
and Assessors, see schedule V, No. 32.
327. The Court of Session may direct jurors or assessors to Power to turn-
be summoned at other periods than the period specified in section ofûrors'or"*'
326, when the number of trials before the Court renders the atten- 1
dance of one set of jurors or assessors for a whole session oppres
sive, or whenever for other reasons such direction is found to be
nec?ssary.
390 Proceedings in Prosecutions. [Ch. XXII I
form «mi eaw* 328. Every summons to a juror or assessor shall be in writ-
mons. ing, and shall require his attendance as a juror or assessor, as the
case may be, at a time and place to be therein specified.
when Govern- 329. When any person summoned to serve as a juror or as-
SJrvint^'be sessor is in the service of Government or of a Railway Company,
MWMd. the Court to serve in which he is so summoned may excuse his
attendance if it appears on the representation of the head of the
office in which he is employed that he cannot serve as a juror or
assessor, as the case may be, without inconvenience to the public
Cow* mu <•!- 330. (/) The Court of Session may, for reasonable cause,
of juroror.1^%- excuse any juror or assessor from attendance at any particular
session.
K' .02) The Court of Session may, if it shall think fit, at the con
juror, from li.i- elusion of any trial by special jury, direct that the jurors who have
Oilil}- lo nerve . J, . < I. .,J ,, J
■mm uh jUr,iri served on such jury shall not be summoned to serve again as jurors
mono*..10 for ■ period of twelve months.
Mid!ii?J"rt? 331. (1) At each session the said Court shall cause to be
twain*. made a list of the names of those who have attended as jurors and
assessors at such session.
(2) Such list shall be kept with the list of the jurors and as
sessors as revised under section 824.
(3) A reference shall be made in the margin of the said re
vised list to each of the names which are mentioned in the list pre
pared under this section.
rtSi&im 33*. (/) Any person summoned to attend as a juror or as

juror or human assessor who, without lawful excuse, fails to attend as required
by the summons, or who, having attended, departs without having
obtained the permission of the Court, or fails to attend ufter an
adjournment of the Court after being ordered to attend, shall be
liable by order of the Court of Session to a fine not exceeding one
hundred rupees.
(2) Such fine shall be levied by the District Magistrate by
attachment and sale of any moveable property belonging to such
juror or assessor within the local limits of the jurisdiction of the
Court making the order.
(3) For good cause shewn, the Court may remit or reduce
any fine so imposed.
(4) In default of recovery of the fine by attachment and sale,
such juror or assessor may, by order of the Court of Session, be
imprisoned in the civil jail for the t3rm of fifteen days, unless such
fine is paid before the end of the said term.
Ss. 328-337] Proceedings in Prosecutions. 39i
L. —Special Provisions for High Courts.

333- At any stage of any trial before a High Court under ££2,™" to
this Code, before the return of the verdict, the Advocate- General »t«y prosecu-
may, if he thinks fit, inform the Court on behalf of Her Majesty
that he will not further prosecute the defendant upon the charge ;
and thereupon all proceedings on such charge against the defen
dant shall be stayed, and he shall be discharged of and from the
same. But such discharge shall not amount to an acquittal unless
the presiding Judge otherwise directs.
334. For the exercise of its original criminal jurisdiction, Time of holding
every High Court shall hold sittings on such days and at such con- "ltt,n,!S-
venient intervals as the Chief Justice of such Court from time to
time appoints.
335. (/) The High Court shall hold its sittings at the ^^holdiUK
place at which it now holds them, or at such other place (if any)
as the Governor-General in Council in the case of the High Court
at Fort William, or the Local Government in the case of the
other High Courts, may direct.
(2) But it may, from time to time, in the case of the High
Court at Fort William with the consent of the Governor-General
in Council, and in all other cases with the consent of the Local
Government, hold sittings at such other places within the Local
limits of its appellate jurisdiction as the High Court appoints.
(3) Such officer as the. Chief Justice directs shall give notice Notice of «u
beforehand in the local official Gazette of all sittings intended to tlnB*"
be held for the exercise of the original criminal jurisdiction of the
High Court.
336. The High Court may direct that all European British viuce oMxi»n>f
subjects and persons liable to be tried by it under section 214, who tishûbj'its."
have been committed for trial by it within certain specified districts
or during certain specified periods of the year, shall be tried at the
ordinary place of sitting of the Court, or direct that they shall be
tried at a particular place named.
CHAPTER XXIV.
General Provisions as to Inquiries and Trials.
337. (/) In the case of any offence triable exclusively by Jj"d*„ »cCSm"
the Court of Session or High Court, the District Magistrate, a piice.
Presidency Magistrate, any Magistrate of the first class inquiring
into the offence, or, with the sanction of the District Magistrate,
any other Magistrate, may, with the view of obtaining the evi
dence of any persou supposed to have been directly or indirectly
392 Proceedings in Prosecutions. [Ch. XXIV.
concerned in, or privy to, the offence under inquiry, tender a par
don to such person on condition of his making a full and true dis
closure of the whole of the circumstances within his knowledge
relative to such offence, and to every other person concerned,
whether as principal or abettor, in the commission thereof.
(2) Every person accepting a tender under this section shall
he examined as a witness in the case.
(3) Such person, if not on bail, sh-ill be detained in custody
until the termination of the trial by the Court of Session or High
Court, as the case may be.
(4) Every Magistrate, other than a Presidency Magistrate,
who tenders a pardon under this section, shall record his reasons
for so doing ; and, when any Magistrate h is made such tender and
examined the person to whom it has been made, he shall not try
the case himself, although the offence which the accused appears
to have c unmitted may be triable by such Magistrate.
(Consideration [30 (Evidence Act). When more persons than one are being
fwMuâliecthi1*- tried jointly for the same offence, and a confession made by one of such
ff"and "others Persons affecting himself and some other of such persons is proved, the
jointly under Court may take into consideration such confession as against such other
offenci?]' Person as we'l BS against the person who makes such confession.
Explanation.—"Offence," as used in the section, includes the abet

ment of, or attempt to commit, the offence.
llluslratimt,
(a) A and B are jointly tried for the murder of C. It is proved

that A said, " B and I murdered G." The Court may consider the effect
of this confession as against B.
(fc) A is on his trial for the murder of 0. There is evidence to
show that C was murdered by A and B, and that B said, " A and I
murdered C."
This statement may not be taken into consideration by the Court
against A, as B is not being jointly tried.]
[Accomplice, j [133 (Evidence Act). An accomplice shall be a competent wit
ness against an accused person ; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an accom
plice.]
Sanction to pro- ^" "Ppliwition to the Higli Court for sanction to prosecute an approver
secute-With- for giving
Thefalse evidence should
of thebeconditional
by motion pardon
on behalf of thebeCrown
made,in under
secuto open
drawal.ol
drawal ?<">• Court. withdrawal should
ditional pardon
' section 339, Act X of 1882, by the authority that granted it and not by the
High Court. Queen-Empress v. Munich Chandra Sark-ar, I. L. It , 24 Cal.,
492 (1897).
S. 337'] Proceedings in Prosecutions, 393
Case in which, upon review, a certificate having been granted by the Accomplice— ^
Advocate-General under section 26 of the Letters Patent, a conviction was im'p'ropBrrecep-
quashed on the ground of improper reception of evidence and misdirection, tion of evidence
The accused being upon his trial at the Sessions for murder, the two principal —Miidireetion.
witnesses for th« prosecution were Gr und M, to whom pardons were tendered
by the committing Magistrate under section 337 of the Criminal Procedure
Code, 1882, and who had accepted the pardons. The Judge read to the jury
statements (which had not been admitted in evidence) by G and M purporting
to have been taken under section 364. Held, that the improper reception of
such evidence constituted a decision erroneous in point of law calculated to
prejudice the prisoner. The Judge further charged the jury that they were
not to convict upon the evidence of G if satisfied that he was an accomplice
and uncorroborated, but coupled the direction with a strong expression of
opinion that G was not an accomplice. Held, that this constituted a misdirec
tion in fact, though not in form, calculated seriously to prejudice the pri
soner's case. The Queen-Empress v. O'Hara, I. L. R., 17 Cal., 642 (1890).
A prisoner, charged before a Magistrate at Benares with offences punish- Accomplice—
able under sections 471, 472, and 474 of the Penal Code, made a confession JoiT'eftec't^f—
to the Magistrate in respect of those offences. He was then sent in custody Subsequent
to Calcutta, and was there, together with other persons, charged before a trial °' ■ccoin-
Magistrate with offences punishable under sections 467, 473 and 475. The Jiêd oifence"!
conduct to which these charges related was closely connected and mixed up
with that to which the charges first mentioned had reference. Under
section 337 of the Criminal Procedure Code, 1882, the Magistrate at Calcutta
tendered a pardon to the prisoner upon the conditions specified in that
section, and the prisoner accepted the pardon, and gave evidence for the
prosecution. The Magistrate held that this evidence was not sufficiently
corroborated, and accordingly discharged all the accused, but the pardon was
not withdrawn, and there was nothing to shew that the Magistrate was
dissatisfied with the prisoner's statements, or considered that he had not
complied with the conditions on which the pardon was tendered. Subse
quently, the prisoner was committed by the Magistrate of Benares for trial
liefore the Court of Session upon the charges under sections 471, 472, and
474 of the Penal Code. He pleaded not guilty, but did not in terms plead
the pardon as a bar to the trial, though he made some reference to the
subject ; and the Sessions Judge, having made a brief enquiry as to the
proceedings at Calcutta, came to the conclusion that there was no sufficient
proof of any conditional pardon, and convicted and sentenced the accused.
Held, that by the terms of the conditional pardon granted to the accused by
the Calcutta Magistrate, the conditions of which were satisfied as was
shown by its never having been withdrawn, the accused was protected from
trial at Benares in respect of the offences under sections 471, 472, and 474,
and was not liable to be proceeded against in respect of them, and that the
trial and conviction were therefore illegal. Although section 337 of the
Code does not in terms cover a case where a Magistrate holding a prelimi
nary enquiry for committal against several persons, tenders a conditional
pardon to one of thein, examines him as a witness, and subsequently dis
charges all the accused for want of a prima facie case against them, the
words " every person accepting a tender under this section shall be examined
as a witness in the case mean that for all purposes (subject to failure to
satisfy the conditions of the pardon as provided for by section 339), such a
person ceases to be triable for the offence or offences under enquiry or (with
reference to section 339) for " any other offence of which he appears to havu
been guilty in connection with the same matter," while making I' a full
and true disclosure of the whole of the circumstances within his knowledge
relative to the offences" directly under enquiry. The words last quoted
refer to the importance, when a pardon is tendered, of encouraging the
approver to give the fullest details, so that points may be found in his
394 Proceedings in Prosecutions, [Ch. XX IV.
evidence wliieli may be capable of corroboration. The question of how far
the pardon protects him, and what portion of it should not protect hiin,
ought not to be treated in a narrow spirit. Queen-Empress v Ganqa Charan,
I.L. B., 11 AH., 7» (1888).
Evidence^ P*r Edge, C. J.—Although, as a general rule, it would be moit unsafe
Corroboration— to convict an accused person on the uucorroborated evidence of an accom-
Scttoba Plice' 8UC" eviJence must, like that of any other witness, be considered and
determined on weighed by the Judge, who, in doing so, should not overlook the position in
not aTulpposed wui?n t,le accomplice at the time of giving his evidence may stand, and the
aimloey to pre- motives which he may have for stating what is false If the Judge, after
vious ciiHeii- making due allowance for these considerations and the probabilities of the
LKoorern- story! comes to the conclusion that the evidence of the accomplice, although
inent from uncorroborated, is true, and the evidence, if believed, establishes the guilt
awu'i'ti'd
acqi ii . °' °^ l'ie Pr'8°neri
Observations us to the'* necessity
ms duty oftocorroboration
convict. Perin Brodhurst, J., contra.
materiul particulars of
the evidence of accomplice witnesses. Per Edgk, C. J., and Straight, J.—
Every case as it arises must be decided on its own facts, and not on supposed
analogies to other cases. Queen-Empress v. Gayadin (I. L. R., 4 All., 148),
distinguished. Queen-Empress v. Gayadin, followed by Brodiiurst, J., as to
the principles applicable to the determination of appeal* preferred by the
Local Government from judgments of acquittal. Per Edge, C. J.—In capi
tal cases, where the Local Government appeals, under section 417 of the Code,
from an order of acquittal, it is, generally speaking, undesirable that the pri
soner's fate should be discussed while he remains at large ; and the Govern
ment should, in such cases, apply for the arrest of the accused under section
427 of the Code. Queen-Empress v. Gobardhan, I. L. B., 9 AH., 528 (1887).
I * I de nee of Where a pardon was tendered by the Magistrate to a person supposed to
accomplice- have been concerned with other persons in offences none of which were ex-
acctued' peno'tf eul8've'y triable by the Court of Session, and such person was examined as a
witness in the case, held, that the tender of pardon to such person not being
warranted by section 347 of the Code of Criminal Procedure, 1872, he could
not legally be examined on oath, and his evidence was inadmissible. Held,
also, that the statement made by such person was irrelevant and inadmissible
as a confession, with reference to section 344 of the Code and section 24 of
Act I of 1872. Empress of India v. Aighar Alt, I. L. R., 2 All., 2C0 (1879).
Indian Evidence Section 133 of the Indian Evidence Act (No. I of 1872) in unmistakable
dHm AC°°m" ter1118 lRy8 ft down that a conviction is not illegal merely because it proceeds
l' upon the uncorroborated testimony of an accomplice, and to hold that corro
boration is necessary is to refuse to give effect to this provision. The rule in
section 114 of the Indian Evidence Act coincides with the rule observed in
England, that though the evidence ot an accomplice should be carefully scan
ned and received with caution, and may be treated as unworthy of credit, yet
if the jury or the Court credits the evidence, a conviction proceeding upon it is
not illegal. Reg. v. Ramasami Padayachi, I. L. R., 1 Mad., 394 (1878).
It is not competent to a Magistrate to convert an accused person into a
*onverô'nr,0o[(' witness except when a pardon has been lawfully granted under section 347 of
into J witness. ' the Code of Criminal Procedure, 1872. Evidence given by such a person who
had received a pardon in the case of an offence not exclusively triable by the
Come of Session, held not relevant, that person not having been acquitted or
discharged or convicted. Reg v. Hanmauta, I. L. l!., 1 Bom., 610 (1877).
Power to direct 338> At any time after commitment, but before judgment is
tender of par- pasgec]( the Court to which the commitment is made may, with the
yiew of obtaining on the trial the evidence of any person supposed
Ss. 338-339] Froceedings in Prosecutions. 395
to have been directly or indirectly concerned in, or privy to, any
such offence, tender, or order the committing Magistrate or the
District Magistrate to tender, a pardon on the same condition to
such person.
A Sessions Judge cannot tender a pardon to an accused under section Pardon—OBen-
338 of the Code of Criminal Procedure, wl.ere the offence for which he has JM"tHKtohf
teen committed is not ''triable exclusively by the Court of Sessions. " Queen- Court ot Sei-
Empress v. Hodh'e Kami, I. L. B., 10 Cal., 936 (1884). •'<>"••
A Court of Session, under section 338 of the Criminal Procedure Code, ten- Tender of par-
dered a pardon to an accused person, charged jointly with two others for the don. pto wfco<j.m"
same offence, who had pleaded guilty. The tender was accepted and such pleaded'guilt;,
person was examined as a witness against the other accused. Held, that the
tender of pardon was not improperly made, and the evidence of the approver
was admissible. Per Dutiioit, J.—The word " supposed " in section 338
must be taken merely as intended to exclude the case of a man who has
actually been convicted of the crime, and not the case of a man who, although
admitted to lie a party to the crime, is unconvicted. Queen-Empress v. Kaliu,
I. L. B., 7 All., 160(1884).
339. (7) Where a pardon has been tendered under section commitment
337, or section 338, and any person who has accepted such tender whoinîrd'on
has, either by wilfully concealing anything essential or by giving e'J^,l,een tend'
false evidence, not c.jmplied with the condition on which the ten
der was made, he may be tried for the offence in respect of which
the pardon was 80 tendered, or for any other offence of which he
appears to have been guilty in connection with the same matter.
( 2 ) The statement made by a person who has accepted a
tender of pardon may be given in evidence against him when the
pardon has been forfeited under this section.
(3) No prosecution for the offence of giving false evidence in
respect of such statement shall be entertained without the sanction
of the High Court.
An application to the High Court for sanction to prosecute an approver sanction to pro-
for giving false evidence should be by motion on behalf of- the Crown in open •ecute—With-
Court. Thewithdrawal of the conditional pardon should be made, under sec- dttional pardon
tion 339, Act X of 1882, by the authority that granted it and not by the High
Court. Queen-Empress v. Afanick Chandra Sarkar, I. L. B., 24 Cal., 492
(1897).
Two persons, J and U, wore charged with the murder of U's husband, Pardon, with-
and in the course of the police enquiry made certain statements to the police, drawal of-Con-
They were then sent vip by the police to a Deputy Magistrate for enquiry, to p°ri«on«-
J made three statements on the 28th of February, 1st of March, and the 9th Power of ses-
of March, 1894, respectively, two of which were confessions, the third being JJ°n*y j^SSHm
a withdrawal of such confessions. U also made two statements on the 2nd not committed -
and 9th of March, the first of which was a confession and the second a with- Approver, evi-
drawal thereof. On the 24th of April IT was tendered a pardon, and was ence 0 '
thereafter treated as an approver, in which capacity she gave evidence against./.
J was then committed to the Court of Sessions to take his trial, U being sent
396 Proceedings in Prosecutions. [Ch XXIV.
up as an approver. In the Sessions Court U resiled from her deposition before

the committing Magistrate, and was then and there treated as an accused
person, and placed on her trial with the other accused, and the deposition
aforesaid was put in as evidence. Both the accused were convicted mainly on
their confessions, J of murder and U of abetment of murder. Htlct, that
the conviction of U was bad, the Court of Sessions having had uo jurisdiction to
try her as she was never committed to that Court by any competent Magistrate.
Held, that the conviction of J was also bad—(1) Because Vs statement to the
police was not admissible in evidence. (2) Because her statements on the 2nd
and 9th of March were not, under the circumstances, admissible in evidence, as
she was not being legally tried jointly with him for the same offence. (3)
That her deposition on the 24th of April was not admissible in evidence, be
cause, apart from other reasons. J had no opportunity to cross-examine her.
(4) Because J's confession, under the circumstances, was not a free and vol
untary admission of guilt. Held, on the whole case, that independently of the
aforesaid statements and confessions there was no sufficient evidence to justify
the conviction. The Queen-Empress v. Jagat Chandra Mali, I. L. R.. 22 Cal..
50 (1894).
Conditional Seve al persons were charged with dacoity. While the case was pending
pardon to two of the accused made confessional statements ; afterwards a conditional
prisoner- pardon was tendered to them, and they were examined as witnesses by the
Approver, trial
of-—Proof of Magistrate and subsequently on behalf of the prosecution in the Sessions
confessional Court, to which the other accused were committed for trial. They there
statements of denied that they hail been taken as approvers, whereupon the Sessions Judge
licensed.
placed them in the dock, called on them to plead, and permitted the depositions
made by them before the Magistrate, but not their confessional statements, to
be read to the jury. Held, that the trial of the two persons, who had not
been committed to the Sessions Court, was ultra t ires. Per curiam.—The
Sessions .Judge committed an irregularity in refusing to place on the record the
confessional statements of persons whom he treated as accused. It is unfair
to put an approver, whose conditional pardon has been cancelled, on trial, along
with other prisoners, in the course of whose trial such approver has given
evidence. Queen- Empress v. Rama Teran. I. L. II.. 15 Mad., 352 (1892).
Sopirate Ill a criminal trial evidence otherwise admissible is not rendered in

offences. elToct admissible by the fact that it discloses the commission of an offence other
of (ritil of, in the than that in respect of which the trial is being held. An accused person to
suine proceed
ing:— hvidencc, whom a tender of pardon has been made, and who has given evidence under
admissibility of that pardon against persons who were co-accused with him, should not, if
—Pardon, with
drawal of— such pardon js withdrawn, be put back into the dock and tried as if he had
Trial of person never received a tender of pardon, but his trial should be separate from and
whose pardon subsequent to that 'of the persons co-accused with him. Where four accused
has hecn with
drawn. were at one and the same trial tried for offences of murder and robbery com
mitted two or three hours previously and at a place close to the scene of the
robbery and murder : Held, that the trial of these separate offences together,
though air error or irregularity within the meaning of section 537 of the Code,
would not necessarily render the whole trial void. Queen-Empress v. Mulua,
I. L. R., 14 All., 502 (1892).
Pardon—Trial Where a pardon has been tendered to any person in connection with an
of person who offence, he should not bo tried for any alleged breach of the conditions of
a panloii^has u'8 Par<'on or for any offence connected with that for which he has received
not fulfilled the pardon until the trial of the principal offence, and of any offence connec-
X?h"°nwa" ted therewith> l'»8 been completed. Queen-Empress v. Sudra, I. L. R., 14 All.,
offered. 33G (1891).
339-] Proceedings in Prosecutions. 397
A prisoner charged before a Magistrate at Benares with offences punish- Accomplice—

able under sections 471, 472, and 474 of the Penal Code, made a confession to don'eiTeot of""
the Magistrate in respect of those offences He was then sent in custody to Subsequent
Calcutta, and was there, together with other persons, charged before a Magis- tr!al °{ accom-
trate with offences punishable under sections 467, 473, and 475 The conduct [lecUM offence"!
to which these charges related was closely connected and mixed up with that
to which the charges first mentioned had reference. Under section 337 of
the Criminal Procedure Code, 1882, the Magistrate at Calcutta tendered a
pardon to the prisoner upon the conditions specified in that section, and the
prisoner accepted the pardon, and gave evidence for the prosecution. The
Magistrate held that this evidence was not sufficiently corroborated, and
accordingly discharged all the accused, but the pardon was not withdrawn,
and there was nothing to show that the Magistrate was dissatisfied with
the prisoner's stitement or considered that he had not complied with the
conditions on which the pardon was tendered. Subsequently the prisoner
was committed by the Magistrate of Benares for trial before the Court
of Sessions upon the charges under sections 471. 472, and 474 of the Penal
Code. He pleaded not guilty, but did not in terms plead the pardon as a bar
to tire trial, though he made some reference to the subject ; and the Ses
sions Judge having made a brief enquiry as to the proceedings at Calcutta,
came to the conclusion that there was no sufficient proof of any conditional
pardon, and convicted and sentenced the accused. Held, that by the terms of
the conditional pardon granted to the accused by the Calcutta Magistrate,
the conditions of which were satisfied as was shown by its never having
been withdrawn, the accused was protected from trial at Benares in respect
of the offences under sections 471, 472, and 474, and was not liable to be pro
ceeded against in respect of them, and that the trial and conviction were there
fore illegal. Although section 337 of the Code does not in terms cover a
case where a Magistrate holding a preliminary enqury for committal against
several persons, tenders a conditional pardon to one of them, examines him
as a witness, anil subsequently discharges all the accused for want of a prima
facie case against them, the words " every person accepting a tender under
this section shall be examined as a witness in the case " mean that for all
purposes (subject to failure to satisfy the conditions of the pardon as provided
for by section 33'J), such a person ceases to be triable for the offence or offen
ces under enquiry, or (with reference to section 33'J) for " any other offence of
which he appears to have been guilty in connection with the same matter,"
while making a " full and true disclosure of the whole of the circumstances
within his knowledge relative to the offences " directly under enquiry. The
words last quoted refer to the importance, when a pardon is tendered, of
encouraging the approver to give the fullest details, so that points may be
found in his evidence which may be capable of corroboration The question
of how far the pardon protects him, and what portion of it should not protect
him, ought not to be treated in a narrow spirit. Queen-Empress v, Ganrja
iharan, I. L. R., 11 All., 79 (188M).
A deposition given by a person is not admissible in evidence against him Deposition of

in a subsequent proceeding, without its being first proved that he was the ^"n,cdIul,11';|J0"
pf rson who was examined and gave the deposition. A pardon was tendered siltlc in evl-
to an accused, and his evidence was recorded by the Magistrate. Subse- d?nce. wrainst
qucntly the pardon was revoked, anil he was put on his trial before the Ses- JJJjJu pVIceed-
sions Judge along with the other accused. At the trial the deposition given lnu
by him before the Magistrate was put in and used in evidence agiinst him
without any proof being given that he was the person who was examined as
a witness before the Magistrate Held, that the deposition was inadmissible
without proof being given as to the identity of the accused with the person
who was examined as a witness before the Magistrate. Queen-Emjiress v.
Durga Sonar, I. L. R , 11 Cal, 580 (1885).
398 Proceedings in Prosecutions. [Ch. XX IV.
Sanction—Evi In cases not of the kind contemplated in section 337 of the Criminal
denced accus Procedure Code, 1882, it is not competent to a Magistrate holding a preliminary
ed illeically par enquiry to tender a pardon to the accused, or to examine hiin as a witness.
doned.
Statements made by the accused in the course of such examination are irrele
vant ; and if subsequently retracted, they cannot be used against him, or subject
him to a prosecution for giving false evidence, under section 193 of the Indian
Penal Code. When a pardon is legally tendered to the accused under section
337 of the Code and the accused makes a statement on oath which he retracts
in a subsequent judicial proceeding, a proper sanction is necessary for a pro
secution for giving false evidence on each branch of the alternative charges.
Such sanction can only be granted before and not after the commencement of
the prosecution. • Queen-Empress v. Dalit Jim, I. L. R., 10 Bom., 190 (1885).
Evidence of ap Quare.—Whether the deposition of an approver taken before the commit
prover—Condi ting Magistrate may be used in the Sessions Court as evidence against accom
tional pardon. plice, the approver having retracted his former statement, and the conditional
pardon having, in consequence, been withdrawn. Sanha Malta v. Empress,
ISCal.L R., 326(1883).
A pardon granted under section 349 of the Code of Criminal Procedure,
Tender of par 1872, was withdrawn by the Sessions Judge before the hearing of the whole
don -With
drawal of par of the evidence, without proof that the statement made by the person pardoned
don. was inconsistent, except upon most immaterial points, with previous state
ments by him or contradicted by the evidence, and before any evidence affect
ing his veracity had been given. Held that the pardon had been improperly
withdrawn. Srinop v Empress, 12Cal. L. R , 22(5 (1880).
Evidence of Per Field, J.—There is a grave doubt whether the deposition of an ap
approver Pro prover, taken before the committing Magistrate, may be used as evidence
cedure on with against his accomplices on their trial before the Sessions Court, the conditional
drawal of condi pardon of the approver having been withdrawn. Where a conditional pardon,
tional pardon.
granted to an approver, is withdrawn under section 349 of the Criminal Pro
cedure Code, 1872, by the Sessions Court, the Judge ouglit to wait till the
conclusion of the trial of the accomplices, and then, before passing judgment
on them, if found guilty, proceed against the approver. In re Jotjudee Para-
manich, 7 Cal. L. R., 66 (1880).
Conditional Held, that a Sessions Judge acted irregularly in at once trying and con
pardon -Proce victing a person who had been granted a conditional pardon by the Magistrate,
dure. and who nod been sent up to the Sessions Court as a witness for the Crown.
The Sessions Judge was directed to order the Magistrate to commit the
accused to the Sessions for a fresh trial after hearing his defence and examin
ing his witnesses. Hit Queen v. Bipro Dass, 19 W. li., 43 (1873).
Conditional Where a person to whom a tender of conditional pardon has been extended
pardon -Exa- is considered by the Sessions Judge not to have conformed to the conditions
M'Sra'to*'0"1 "mler which pardon was tendered, the Sessions Judge, in exercising the power
given him by section 211 of the Code of Criminal Procedure, ought not to try
him along with the prisoners in whose case he has already given testimony.
The Queen v. Petumber Dlioohee, 14 W. R., 10 (1870).
Pardon— Re A person accused of an offence was offered a pardon, the conditions of

traction. which he accepted. On being examined he stated in detail the circumstances
of the offence, and named the prisoner ub an accomplice. He afterwards
retracted his statement. Held, that the statement could not be used as evidence
against the prisoner. The Queen v. Hardewa, 5 X.-W. P., H. C, 217.
Riniu of ac- 340. Every person accused before any Criminal Court
telded.0 de" mav °f "£n^ ê defended by a pleader.
The word " accused" means a person over whom the Magistrate or other "Accused."
Court is exercising jurisdiction. Under the provisions of section 340 of the Rj£htnffto °bf
Criminal Procedure Code, 1882, a Sessions Judge is bound to hear the pleader heard,
appointed by a person w ho (though not accused of any offence) is ordered
to give security for good behaviour under section 118 of the Code. Jhoja
Singh v. Queen-Empress, I. L. B., 23 Cal., 403 (18%).
341. If the accused, though not insane, cannot be made Procedure

to understand the proceedings, the Court may proceed with the ,7<!e»™otBundwv
inquiry or trial ; and, in the case of a Court other than a High 'j™J p"*68"1'
Court, if such inquiry results in a commitment, or if such trial
results in a conviction, the proceedings shall be forwarded t > the
High Court with a report of the circumstances of the case, and
the High Court shall pass thereon such order as it thinks fit.
The provisions of section 186 of the Code of Criminal Procedure, 1872, Lunatic—Imbe-
do not apply to a person who is of unsound mind : tliev apply to persons who eile- Inability
ii to
are unable . understand
i t j the.1 proceedings
!• £
from i *
deatness, ■
or ignorance otc <ithe to understand
proceedina-i.
language of the country, or other similar cause. But where the inability to
understand the proceedings is due to unsoundness of mind, the procedure
provided in Chapter XXXI of the Code must be followed. Where a Magis
trate found that an accused person convicted of theft was an imbecile, and
consequently unable to understand the proceedings, but that he was not of
unsound mind, the High Court held that this distinction was without a
difference, and, under section 297 of the Code, annulled the conviction, and
declaring the accused to be of unsound inind, directed that he should be
released on sufficient security being given that ho would be properly taken
care of, and prevented from doing injury to himself or any other person, and
for his appearance when required ; and that, in default of such security being
given, the case should be reported to Government. Empress v. Huten, I. L.
B., 5 Bom., 262 (1881).
342. (7) For the purpose ot enabling the accused to explain i>ower t0 01>.
any circumstances appearing in the evidence against him, the th« ac-
Court may, at any stage of any inquiry or trial, without previously
warning the accused, put such questions to him as t he Court consi
ders necessary, and shall, for the purpose aforesaid, question him
generally on the case after the witnesses for the prosecution have
been examined, and before he is called on for his defence.
(2) Hie accused shall not render himself liable to punish
ment by refusing to answer such questions, or by giving false
answers to them ; but the < 'ourt and the jury (if any) may draw
such inference from such refusal * or answers as it thinks just.
(3) The answers given by the accused may be tiken into
consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused.
•Illustration (h) to section 114, Evidence Act, No. I of 1872.—The Court
may presume—" that, if a man refuse? to answer a question which he is not com-
elled to answer by law, the answer, if given, would be unfavourable to him."
Proceedings in Prosecutions. [Ch XXIV.
Affidavit in Held, that a person seeking by an application in revision to get rid of a

sppuc^ttoil"for conviction standing against him is incapable of tendering his own affidavit in
revision. support of such application, and consequently that, if he did tender such an
affidavit, he could not be prosecuted for false statements which might be
contained therein. In re Bar/cat, I. L. R., 19 AH.. 200 (1897).
Examination of Where an accused, a Manipuri, was examined before the Magistrate
£?strnt» b-V M"* through an interpreter, who obtained his answers in Manipuri, and they were
recorded in that language, and the interpreter translated them into Bengali,
and they were recorded by the Magistrate in English, and the statement in
English and that in Manipuri were found to differ : Held, that the statement
recorded in Mainpuri must be taken to be the record in the case. Had the
Manipuri statement not been made, the Magistrate by recording the statement
in English would not have strictly complied with the spirit and intention of
section 364 of the Criminal Procedure Code, though the record in English
might not necessarily have been inadmissible in evidence. Queen-Empress
v. Sagal Samba Sajao, I. L. R., 21 Cal., G42 (1893).
Power of Ma- Held, that where a Magistrate, before evidence taken for the prosecution ,
ftonth* nccti's*' Put questions to the accused of the nature of a cross-examination, such pro-
od. " cedure was illegal, as it could not be said that the questions were put " for
the purpose of enabling the accused to explain any circumstances appearing
against him in the evidence," within the meaning of section 312 of the Code
of Criminal Procedure Queen-Empress v. R. Hawthorne, 1. L. R., 13 All., 345
(1891).
Confession. On a certain day a confession by an accused person was recorded by a
Magistrate, and on the next day the same Magistrate, having jurisdiction to do
so, examined the witnesses for the prosecution, and eventually committed the
accused. Held, following Empress v. Amnlram Singh, that such confession
having been made to a Magistrate competent to hold, and who actually then
was holding, an enquiry preliminary to committal, must be regarded as falling
within section 193 of Act X of 1872, or section 342 of Act X of 1882, and as
such governed by the reservations contained in section 346 of the former Act,
or section 364 of the latter. Observations on sections 342 and 364 of Act X
of 1882. Empress of India v. Yakub Khan, I. L. R., 5 All., 253 ,,1883).
Kcuaed'b'01' °' ^nc aut''ority given to a Sessions Court to examine an accused does not
Sessions Judge, contemplate the cross-examination of such accused, nor can the Judge en
deavour, by a series of searching questions, to force the accused to criminate
himself. The real object involved in the power given to the Court under sec
tion 250 of the Code of Criminal Procedure is to enable the Judge to ascertain
from time to time from the accused (especially if he be undefended) such ex
planation as he may desire to give regarding any statement made by the wit
nesses, or, at the close of the case for the prosecution, to elicit from the ac
cused how he proposes to meet such portions of the evidence which, in the
opinion of the Court, implicates the accused in the commission of the
offence with which he stands charged. Hossein Buksh v. The Empress,
I. L. R., 6 Cal., 96 (1880).
Confession. A confession recorded by a Magistrate, who afterwards conducts the
enquiry preliminary to committal, and has jurisdiction to do so, is to be trea
ted as an examination under section 193 of the Criminal Procedure Code, 1872,
and not as a confession recorded under section 122, notwithstanding that the
prisoner may have been brought before the Magistrate before the conclusion
of the police investigation. To such a confession consequently the provisions
of the last paragraph of section 346 apply. Section 122 of the Code contem
plates and provides for cases in which confessions are recorded by a Magistrate
other than the Magistrate by whom the case is enquired into or tried. The
Empress v. Annntram Singh, I. L. R., 5 Cal., 954 (1880).
S. 343-] Proceedings in Prosecutions. 401
It is improper for the Court to cross-examine a prisoner with the apparent Cross-exammn-
object of convicting him out of hia own mouth of false statements, and so prisoner!01"1-
making him prejudice himself in respect of the matter with which he is
charged. Empress v. Behari Lull Bose, 6 Cal. L. R., 431 (1880).
Under section 250 of the Code of Criminal Procedure, 1872, the Court 5,"mit"1a^n oI
may, from time to time, at any stage of the case, examine the accused per- 18
sonally ; but the Court is not competent to subject the accused to severe cross-
examination. The discretion given by the law is not to be used for the pur
pose of driving the accused to make statements criminating himself ; but only
for the purpose of ascertaining from the accused how he is able to meet facts
standing in evidence against him, so that these facts should not stand against
him unexplained. 1 Cal. L. R., 436 (1878).
The discretion of a Magistrate under section 202, Code of Criminal Procc- jtatio^fof.6"""
dure, 1861, to ask questions of an accused is entirely unfettered, though an
examination under that section should not be of an inquisitorial nature, and a
Magistrate should inform the accused that he is not bound to answer. Answers
to questions under that section are admissible in evidence, even if the Magis
trate has omitted to warn the accuseil he need not auswer. In re Dinoo Roy,
16 W. R., 21 (1871).
An admission of crime, when fairly made after due warning, is not in- Admlwion of
admissible, simply because, at the time it was made, no formal accusation had joj^^^J)
!>een made against the party making it. Queen v. Rum Churn Chamar, 4 W. cusation.
B., 10 (1865).
343. Except as provided in sections 837 and 338, no in- g^JSJCS'iS

fluence, by means of any promise or threat or otherwise, shall be Jure discio-
used to an accused person to induce him to disclose or withhold s"
any matter within his knowledge.
[24 (Evidence Act). A confession made by an aeensed person [c°^|*si{l"
is irrelevant in a criminal proceeding, if the making of the confession Ihireiteiu?
appears to the Court to have been caused by any inducement, threat, or m^'wh^re*
promise, having reference to the charge against the accused person, levnnt in crimi-
proceeding from a person in authority, and sufficient, in the opinion of "al >>I'occedl"'r-1
the Court, to give the accused person grounds, which would appear to
him reasonable, for supposing that by making it he would gain any ad
vantage or avoid any evil of a temporal nature in reference to the proceed
ings against him. J
[28 (Evidence Act). If such a confession as is referred to in tCwtawjon ^
section 24 is made after the impression caused by such inducement, movaiof imm-os-
threat, or pruuiise, has, in the opinion of the Court, been fully removed, p'Xeeme'nt.
it is relevant.] throat, or pro-
mine, relevant.)
[29 (Evidence Act). If such a confession is otherwise relevant 0[h°"|t»T0relc-
it does not become irrelevant merely because it was made under a promise vantnotto be-
of secrecy, or in consequence of a deception practised on the accused per- {^,0,^f,Cpro^
son for the purpose of obtaining it, or when he was drunk, or because it ■>'•• of secrecy,
was made in answer to questions which he need not have answered, what-
ever may have been the form of those questions, or because he was not
warned that he was not bound to make such confession, and that
evidence of it might be given against him.]
26
Power to post- 344> (/) If, from the absence of a witness, or any other
proSediiKts0"1 reasonable cause, it becomes necessary or advisable to postpone
the commencement of, or adjourn, any iiqniry or trial, the Court
may, if it thinks fit, by order in writing stating the reasons there
for, from time to time, postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers reasonable, and
may by a warrant remand the accused if in custody :
Remand. Provided that no Magistrate shall remand an accused person
to custody under this section for a term exceeding fifteen days at
a time.
(2) Every order made under this section by a Court other
than a High Court shall be in writing signed by the presiding
Judge or Magistrate.
Reasonable Explanation.—If sufficient evidence has been obtained to raise a
mand. " re' suspicion that the accused may have committed an offence, and it
appears likely that further evidence may be obtained by a remand, this
is a reasonable cause for a remand.
Bail—Remand When an accused person is first brought before a Magistrate, and a ro-
—Necessity of mand in required by the prosecutor, it is ordinarily sufficient to show by the
before ^fusiw evidence of a police-officer that the police are in possession of information,
bail. "believed to be reliable, that the accused has committed an offence: but when
the Magistrate in refusing bail, and with each remand the necessity for pro
duction of evidence of guilt becomes stronger. Ponnummi Chetti v. The
Quern, I. L. R., 0 Mad., G9 (1882).
Bail—Applica The proceeding in which it has to be determined whether an accused per
tion for -Judi son should be admitted to bail by a Magistrate is a judicial proceeding, and,
cial Proceeding as such, cognizable by the High Court under section 297 of the Code of Cri
— Reasonable minal Procedure, 1872. Section 194 of the Code, 1872, must be read as a
pround for re
mand not sup proviso to section 190, and authorises a Magistrate for reasonable cause to
ported by sworn remand an accused person to jail without examining any witnesses. Where
testimony
sufficient. evidence was available, but it appeared necessary to the Magistrate to defer
the examination of witnesses in order that further evidence may be produced
(so that the enquiry, when commenced, might be continuous): Held, that
such a reason recorded by the Magistrate, although not sworn to, justified a
remand for five days and a further remand for four days. An accused person
has a right to have the evidence against him recorded at as early a period as
possible, and the fact that there is or may be a great body of evidence forth
coming against him is not a ground for detention for an inordinate period. Per
Kernan, J.— When a Magistrate defers the examination of witnesses, adjourns
the enquiry, and remands the prisoner under section 194 of the Code, 1872, he
is bound to express clearly on the record the reasonable cause from which such
action became neeessar; or advisable. Manikam Mudali v. The Queen, I. L.
R., 6 Mad., 63 (1882).
Adjournment If in the course of a trial, the Sessions Judge should be of opinion that
of trial. the prosecution has not laid a proper basis for !bc reception of evidence in
the absence of the accused, his proper course is to adjourn the trial under
section 2C4 of the Criminal Procedure Code, and then, under section 351,
summon such witnesses as he may deem material. Empress v. Saganbur, 12
Cal. L. R., 120 (1882).
A Magistrate is not at liberty to retain an accused person in custody, Detention of

except upon a proper remand made after taking sufficient evidence given JJ^jJ*1-B**
on oath or solemn affirmation. In re Zahurtuhleen Hossein, 25 W. 11., 8
(1876).
A prisoner arrested under a warrant should lie brought promptly before Detention of
a Magistrate, who has then no authority to further detain him in custody or *c<:u»ed.
to rcmund him to prison without some reason made manifest to him, cither in
the shape of sworn testimony given before him, or in some other form
which can be put upon the record, and which is sufficient to justify him in
sending the prisoners to prison. Alulool Kadir Khan v. The Magistrate
o/Purneak, 20 W. K., 23 (1875).
Although an improper adjournment of an enquiry by u Magistrate was improper
scarcely an error in the decision upon a point of luw, or involved any adjournment
question of luw justifying the interference of the High Court under section Megiatrauj. 'V
404 of the Code of Criminal Procedure, the Court, under section 15 of the
Charter Act, set aside the order of the Mugistrate adjourning the enquiry when,
according to section 224, there was not the absence of a witness or other
reasonable cause rendering it necessary or advisable to adjourn the enquiry :
the power conferred by section 224 being one which can only be exercised
in cases which conic really within the terms of that section. Sluthoora Nath
Chuckerbutly v. Heera Lall Doss, 17 W. R., 55 (1872).
345> (1) The offences punishable under the sections of the compounding
Indian Penal Code described in the first two columns of the table o"*""'*-
next following may be comp >unded by the persons mentioned in the
third column of that table : —
Sections of Indian Person by whom offence

Oftence. Penal Code may be compounded.
applicable.
Uttering words, etc., with 21»8 The person whose religious

deliberate intent to wound feelings are intended to be
the religious feelings of wounded.
any person.
Causing hurt 323, 334 The person to whom the hurt
is caused.
Wrongfully restraining or 341, 342 The person restrained or con-
confining any person. lined.
Assault or use of criminal 352, 355, 358 The person assaulted or to
force. whom criminal force is
used
Unlawful compulsory labour. 374 The person compelled to
labour.
Mischief, when the only 426, 427 The person to whom the loss
loss or damage caused is or damage is cuused.
loss or damage to a pri
vate person.
404 Proceedings in Prosecutions [Ch. XXIV.
Sections ot Indian Person by whom offence

Offence. Penal Code may bi componuded.
applicable.
Criminal trespass 447 | The person in possession of

the property trespassed
House-trespass 448 J upon.
Criminal breach of contract 490. 491, 492 The person with whom the
of service. offender has contracted.
Adultery 4'J7 j
The husband of the woman.
Enticing or taking away or 498 J
detaining with a criminal
intent a married woman.
Defamation ... 500-
Printing or engraving matter 501
knowing it to be defama • The person defamed.
tory.
Sale of printed or engraved 502,
substance containing de
famatory matter, know
ing it to contain such
matter.
Insult intended to provoke 504 The person insulted
a breach of the peace.
Criminal intimidation, except 506 The person intimidated.
when the offence is
punishable with imprison
ment for seven years.
(2) The offences of causing hurt and grievous hurt, punish

able under section 324, section 325, section 335. section 837, or
section 338 of the Indian Penal Code, may, with the permission
of the Court before which any prosecution for such offence is pend
ing, be compounded by the persons to whom the hurt lias been
caused.
(5) When any offence is compoundable under this section,
the abetment of such offence or an attempt to commit such offence
(when such attempt is itself an offence) may be compounded in
like manner.
(4) When the person who would otherwise be competent
to compound an offence under this section is a minor, an idiot or a
lunatic, any person competent to contract on his behalf may com
pound such offence.
S. 345-1 Proceedings in Prosecutions. 405
(5) When the accused baa been committed for trial or when
be bus been convicted and an appeal is pending, no composition
for the offence shall be allowed without the leave of the Court to
which he is committed, or, as the case may be, before which the
appeal is to be heard.
(fj) I he composition of an offence under this section shall
have the effect of an acquittal of the accused.
(7) No offence shall be compounded except as provided by

tliis section.
Where an accused person alleges that an offence with which be is charged Compounding
has been compounded so as to take away the jurisdiction of the Criminal Court titesToTcoinpo-"
to try it, the onui is on him to show that there was a composition valid in law. sition of offence
il, a European British subject charged with the compoundable offences of ^'(jd lawT_
wrongful restraint and wrongful confinement of coolies employed on a tea WroiiKfui^res-
garden of which he was the manager, pleaded that the Magistrate had no trnint and con-
jurisdiction to try the cases as they had been compounded by the complain- jiJJsemplov'ed*on
ants. The alleged compromise consisted in a Bengali paper, signed by the tea garden,
coolies, stating that they " made razinamu " (compromise) " of the case of
their own accord," and a paper in English signed by M : these papers being
given to the District Superintendent of Police, who had investigated the com
plaints, and who stated that he asked the coolies as to the contents of the
Bengali paper, and they said that they had signed it voluntarily and stated its
purport, and that one of them said in the presence of the others that it was a
razinama. G, one of the coolies, also wrote on the paper the words in Uriya,
" I will not carry on the case." The Bengali paper was written by the daro-
gah of the police station in the presence of M. The paper signed by M was
as follows :—" I hereby agree with these Ganjam people that there shall be no
legal proceedings of any kind taken against them with the exception of those
who have not completed their agreements. Those whose agreements have
not been completed, proceedings will be taken against them on 22nd May, if
they have not returned to the garden before then." Neither of the papers
were explained to G so as to make them intelligible to him, for though the
Benga'i paper was read out, G did not understand that language. 6? was
one of the coolies who had completed his agreement with M. Heldper Prin-
SKP, J.—The compounding of an offence signifies that the person against
whom the offence has been committed has received some gratification to act
as an inducement for his desiring to abstain from a prosecution ; here there
was no forbearance on the part of M to proceed against G, who had served
out the term of his engagement, and therefore there was no consideration for
the agreement to compound. Having regard, moreover, to the ignoranco and
inferior intelligence of G, it was of vital importance for M to show what led
to the alleged agreement, and how it was that the darogah was instrumental
to it, which he had not done. Per Trevelyan, J.—Compounding an offence
supposes an arrangement by which the parties have settled their differences,
and in the more usual acceptation of the term implies that the prosecutor has
received some consideration or gratification for dropping the prosecution.
Although the provisions of the Contract Act may not apply, the proof of the
arrangement must be similar to that which the Court requires for the proof
of any agreement which is in issue : and unless it appears that the parties were
free "from influence of every kind and were fully aware of their respective
rights, it would be impossible to give effect to a so-called arrangement or
composition. Having regard to the fact that the writer of the Bengali agree
ment had not been culled, and that the contracting parties were, on the one
406 Proceedings in Prosecutions. [Ch. XXIV
side, ignorant coolies, strangers to the land, and to the language in which the
document was written, and on the other, a European of some education, assist
ed hy his Bengali clerk, and having also the assistance of the police, it was
not proved that G knew what he was about and was fairly contracting.
Held, therefore, by the Court that there was under the circumstances no com
pounding of the offences with which M was charged, valid in law such as to
deprive the Magistrate of jurisdiction to try them. Murray v. The Queen-
Empress, I. L. R., 21 Cal., 103 (1893).
Compromise. Held, that the Deputy Magistrate had no option, but was bound to allow
the compromise in a complaint of an offence under section 323 of the Penal
Code. Empress v. Ram Gopal, W. X., N.-W. P., 1886, p. 167.
Fal«e charge— The fact that an offence alleged to have been committed has been com-
coinpouijdiible pounded ;8 no conclusive answer to a charge made against the prosecutor
charge of accus- under section 211 of the Penal Code. A laid a charge against M for wrong
ed chained un- ful confinement. The police reported the case as a false one ; and A not ap-
Indian'Hoiml ' pearing to prove his complaint, the District Magistrate ordered him to be
Code, upon ple» prosecuted under section 211 of the Penal Code, and made over the case to a
0hario'"*i»vin« êPu'v Magistrate. Upon the hearing of such charge, A pleaded that he had
been oompoun- compounded the original charge laid by him against M, and that therefore
ded. the charge against him, under section 211, conld not lie. The Deputy Magis-
- trate, without hearing any evidence, dismissed the case. Held, that the course
so taken was illegal, as such plea was no conclusive answer to a charge under
section 211. Queen-Empress v. Alar Ali, I. L. R., 11 Cal., 79 (1884).
procedure <rf^ 346. (1) If, in the course of an inquiry or a trial before a
Kirtrateincasot Magistrate in any district outside the presidency-towns, the evid-
not'd^pMe0*"" ence appears to him to warrant a presumption that the case is one
which should be tried or committed for trial by some other Ma
gistrate in such district, he shall stay proceedings and submit the
case, with a brief report explaining its nature, to any Magistrate
to whom he is subordinate or to such other Magistrate, havi- g
jurisdiction, as the District Magistrate directs.
(2) The Magistrate to whom the case is submitted may. if
so empowered, either try the case himself, or refer it to any
Magistrate subordinate to him having jurisdiction, or commit the
accused for trial.
Offence original- The accused were charged before a Magistrate of the second-class with
)y cognizable by causing grievous hurt as members of an unlawful assembly under sections
Magistrate- 149 and 325 of the Indian Penal Code. The evidence showed that one of
Subsequently the accused had used an axe in causing hurt. The Magistrate apparently ig-
nv'reô'no'f' aii nore(l t'"8 am' '10 convicted the accused under section 325 of the Code.
aggraYiit'nig c.ir- The accused appealed . The District Magistrate who heard one appeal, and
cumstance—Du- t|ie first-class Magistrate who heard the rest of the appeals, were both of opi-
(fourt." or nion that the offence committed by the accused was one of causing grievous
hurt with a dangerous weapon, within the meaning of section 326 of the
Penal Code, and as such beyond the jurisdiction of the second-class Magis
trate. But they did not think it proper under the circumstances of the case
to quash the convictions. The Sessions Judge, on examining the record of
the case, was of opinion that, as the offence committed by the accused was not
cognizable by the trying Magistrate, his proceedings were void ab initio
under section 530 of the Criminal Procedure Code, 1882. He therefore re
ferred the case to the High Court, and recommended that the eonvicti0ng
under section 325 should be set aside. Held, that the proceedings before the
second-class Magistrate were not void ab initio, as he had jurisdiction to try
the accused for offences punishable under sections 149 and 3^5 of the Penal
Code with which they were originally charged. Held, also, that, though it
was the duty of the trying Magistrate, when the evidence disclosed a circum
stance of aggravation, such as the use of a dangerous weapon, which made
the offence cognizable by a higher Court, to adopt the proper procedure to
send the case to the higher Court, still it was not necessary to quash the pro
ceedings, as the accused were not in any way prejudiced, and the sentences
were not inadequate. Queen-Empress v. Gundya, I. L. R., 13 Bom., 502
(1889).
347. (/) If in any inquiry before a Magistrate, or in any Procedure
trial before a Magistrate before signing judgment, it appears to meficemen"0™!
him at any stage of the proceedings that the cise is one which MûYrate n"d»
ought to "be tried by the Court of Session or High Court, and if committed'1 he
he is empowered to commit for trial, he shall stop further pro
ceedings and commit the accused under the provisions hereinbefore
contained
(2) If such Magistrate is not empowered to commit for trial,

he shull proceed under section 316.
An officer invested with special powers under section 34 of the Code of Jurisdiction—
Criminal Procedure, 1882, should rarely, if ever, try a case himself under section w;thTpeda7"pc£
209 of the Code, where it appears from some of the evidence that the accused were,
might have lieen charged with an offence beyond the jurisdiction of the Ma
gistrate to take cognizance of. Empress v. Paranuuianda, I. L. R., 10 Cal.,
85 (1883).
Section 221 of the Criminal Procedure Code, 1872, authorises a Magistrate, Praetice-Com-
after a charge has been drawn up, to stop further proceedings, and commit ^{^"chargo'^has
for trial. Although the explanation to section 220 provides that, if a charge been drawn up.
is drawn up, the prisoner must be either convicted or acquitted, it does not re
quire that the conviction or acquittal should be by the Magistrate who drew the
charge. The Empress v. Kudrutoollah, I. L. R., 3 Cal., 495 (1878).
348 Whoever, having been convicted of an offence pun- SJJiJjj.

isliable under Chapter XII* or Chapter XVIIf of the Indian Pe- victed of offori-
nal Code with imprisonment fur a term of three years or upwards, agS.'rtwnp-hw
is again accused of any offonce punishable under either of those or Pr°i>ert3r<
chapters with imprisonment for a term of three years or upwards,
shall be committed to the Court of Session or High Court, as the
case may bo, unless the Magistrate before whom the proceedings
are pending is of opinion that he can himself pass an adequate
sentence if the accused is convicted :
Provided that, if the District Magistrate has been invested

with powers under section 30, the case may be transferred to him
instead of being committed to the Court of Session.
* Chapter XII.—Of offences relating to coin and Government stamps,
t Chapter XVII.—Of offences against property.
408 Proceedings in Frosecutions. [Ch. XXIV.
[Punishment of [75 (P. C). Whoever, having beeu convicted of an offence pun-
t^Bftern 'nre- ishable under Chapter XII or Chapter XVII of this Code with imprison-
vtougconytetiou, ment 0f either description for a term of three years, or upwards, shall be
punishable with guilty of any offence punishable under either of those chapters with im-
prisoninent.jm" prisonnient of either description for a term of three yeara or upwards,
shall be subject for every such subsequent offence to transportation for
life, or to imprisonment of either description for a term which may extend
to ten years.]
Procedure when 349. (7) Whenever a Magistrate of the second or third
Magistrate
cannot puss class, having jurisdiction, is of opinion, after hearing the evidence
sentence suffi for the prosecution and the accused, that the accused is guilty, and
ciently severe.
that he ought to receive a punishment different in kind from, or
more severe than, that which such Magistrate is empowered to
inflict, or that he ought to be required to execute a bond under
section IOC, he may record the opinion and submit his proceed
ings, and forward the accused, to the District Miigistrate or Sub-
divisional Magistrate to whom he is subordinate.
(2) The Magistrate to whom the proceedings are submitted

may, if he thinks fit, examine the pvrties and recall and examine
any witness who has already given evidence in the case, and may
call for and take any further evidence, and shall pass such judg
ment, sentence or order in the case as he thinks fit, and as is ac
cording to la w :
Provided that he shall not inflict a punishment more severe

than he is empowered to inflict under sec'ions 32 and 33.
Magistrate, Under section 349 of the Criminal Procedure Code, 1882, a second-class
jurisdiction of. Magistrate transmitted a case to the District Magistrate, being of opinion that
a more severe punishment was deserved than he was empowered to inflict.
The District Magistrate returned the record to the second-class Magistrate,
directing him to commit the case to the Sessions Court. The committal
directed was duly made. The High Court refused to interfere in the matter,
holding that the proceedings of the second-class Magistrate were not illegal,
and that there was nothing done which took away the jurisdiction of the se
cond-class Magistrate to commit. Queen-Empress v. Chatidu Gotcala, I. L. R.,
14 Cal., 355 (1887).
Magistrate, An Assistant Magistrate conv icted a person under sections 40b" and 417 of
jurisdiction of— the Penal Code, and referred the case to the District Magistrate for sentence
Powers of under the provisions of section 34!) of the Code of Criminal Procedure, 1882.
second-class
Magistrates- The District Magistrate was of opinion that the offence was one properly pun
Reference to ishable under section 420 of the Penal Code, and one which the Assistant
District Magis-
rate—Commit Magistrate had no jurisdiction to deal with, and that therefore the reference
tal to Court of under section 349 was ultra vires and illegal. On a reference to the rjigh
Sessions Court : Held, that the Assistant Magistrate was not wholly without jurisdic
tion, as he was competent to commit the accused to the Court of Sessions,
though not to hold a trial, and that the District Magistrate might, if he thought
proper, commit the accused to the Court of Sessions. Abdul Wahub v. Chan-
dia, I.L.R., 13 Cal., 305 (1880).
A second-class Magistrate having convicted a person of theft, and sent Reference by a

hiin to a first-class Magistrate for enhanced punishment as an old offender second-class
under section 349 of the Code of Criminal Procedure, 1882, the first-class oomm'itmeiit to
Magistrate returned the prisoner to the second-class Magistrate, and directed theSosslons
that officer to commit the case to Sessions. On a reference by the Sessions Court.
Judge, the High Court, while allowing the committal to stand, directed fliat
in all cases referred under section 349 of the Code, the Court to which the
case is referred should dispose of the case itself, and not send it back to the
Court by which the reference is made for committal to Sessions. Queen-
Empress v. Viranna, I. L. R., 9 Mad., 377 (1886).
Under section 349 of the Criminal Procedure Code, 1882, a second-class Reference by a
Magistrate transmitted a case to a Sub-Divisional Magistrate, being of opinion 5Sco"^"clA"l
that a more severe punishment was deserved than he (the second-class Magis- Commitment
trate) was empowered to inflict. The Sub-Divisional Magistrate, instead of to lllfl Sessions
disposing of the case him3elf, returned it to the second-class Magistrate foi our
committal, and thereupon the latter committed it. Held, that the action of the
Sub-Divisional Magistrate, in returning the case to the second-class Magistrate,
was illegal, as he was bound to pass a final judgment, sentence, or order.
His order was, therefore, annulled, and he was directed to dispose of the
case himself. Queen- Empress v. llavia Tellapa, I. L. R., 10 Bom , 196
(1886).
A Magistrate, to whom a case is referred under section 46 of the Criminal Duty of supcri-
Procedure Code, 1872, for enhanced punishment, has no power to send the case °n referonce'by
for enquiry to another Magistrate. The Queen v. Velayudam, I. L. R., 4 Mad., an inferior
233 (1881). Court-
The word "order" in section 46 of the Code of Criminal Procedure, 1872, Order-
associated as it is with the words " judgment and sentence," means a final Committal .
order, i. e., one disposing of a case so far as the Magistrate, to whom a subordi
nate Magistrate submits the proceedings of the case for higher punishment, is
concerned. It does not deprive that Magistrate of the exercise of his discre
tion as to its being a proper case for the Sessions, and of the power of com
mitting it for trial given by section 143 of the Code. Imperatrix v. Abdulla,
I. L. R., 4 Bom., 240 (1880).
A Magistrate to whom a case is referred for enhancement of punishment 9j|Jj^JJJj,t"
under section 46 of the Criminal Procedure Code, 1872, may order the com- j^te—Re
mittal of the case for triul by the Sessions Court In re Chimtimarigadu, I. L. fereiice.
R., 1 Mad., 289 (1877).
When the proceedings in a case tried by a subordinate Magistrate are Sj^JJorijiaSB
submitted under section 277 of the Code of Criminal Procedure, 1861, to a jiîstmtc""*
District Magistrate to pass sentence upon the accused, the accused is entitled sentence,
to be present at the passing of such sentence before the District Magistrate.
R»g. v. Ragha Naranji, < Bom., (Crown Cases) 31 (1870).
350. (/) Whenever any Magistrate, after having heard Conviction or

and1 recorded
1 1\i i_ 1 or any part ol
°.. the
.1 evidence
-j • an inquiry
. . evidence
commitment on
the whole in partly
or a trial, ceases to exercise jurisdiction therein, and is succeeded Maûtrttând
by another Magistrate who has and who exercises such jurisdic- PfJ*!? by an*
• i *t • 1■ 1 •1 other.
tion, the Magistrate so succeeding may act on the evidence so
recorded by his predecessor, or p.irc y recorded by his predecessor
and partly recorded by himself ; or he may re-summon the wit
nesses and re-commence the inquiry or trial :
Provided as follows ;—
(a) in any trial the accused may, when the second Magis
trate commences his proceedings, demand that the wit
nesses or any of them be re-summoned and re-heard ;
(b) the High Court or, in cases tried by Magistrates sub
ordinate to the District Magistrate, the District Magis
trate may, whether there be an appeal or not, set aside
any conviction passed on evidence not wholly recorded
by the Magistrate before whom the conviction was held,
if such Court or Tistrict Magistrate is of opinion that
the accused has been materially prejudiced thereby, and
may order a new inquiry or trial.
(2) Nothing in this section applies to cases in which proceed
ings have been stayed under section 346*.
Transfer o/ case Section 350 of the Criminal Procedure Code, 1882, was intended to provide
Magistrate'""'* ôr a ca8e w'iere an enclu'ry or trial lias been commenced before one incumbent
Kistrict Miijris- of a particular Magisterial post, and that officer ceases to have jurisdiction in
trate—District that post, and is succeeded by another officer. A subordinate Magistrate,
riding Im^cvH having taken all the evidence for the prosecution and for the defence, sent
denx> taken by the case to the Magistrate of the District, not on the grounds mentioned in
subordinate, section 34(J of the Code, and the District Magistrate, observing that none of
the accused asked to have the witnesses reheard, gave judgment upon the
evidence taken by the subordinate Magistrate. The Sessions Judge refused
to interfere in revision with the District Magistrate's proceedings, on the
ground that they were covered by section 350 of the Code. Held, that this
view was erroneous, that neither under section 192 nor under section 349 was
there any transfer to the District Magistrate by his subordinate, that section
350 was inapplicable, and that the order passed by the District Magistrate
must be quashed. Queen-Empress v. Itadhe, I. L. R., 12 All., 66 (1889).
jg A Magistrate upon complaint made having issued process and examined
rcceived'bv witnesses in support of the complaint, ceased to exercise jurisdiction. His
one Magistiate successor on taking up the case referred the complaint to the police for enquiry
other Mam»-n* a,K' rePort;' ana- uPon receipt of the report discharged the accused. Held, that
tmte. ilagi" this procedure was illegal. Sadagopacharyar v. Ragaracharyar, I. L. R., 9
Mad., 282 (1886).
■' Interior "— A Magistrate of the first-class is, within the meaning of section 437 of
^subordinate " the Criminal Procedure Code, 1882, " subordinate " to the Magistrate of the
Magistrate** District, who is therefore competent to call for the record of the former, and
" subordinate " to deal with it under section 437. Queen-Empress v. Laskari, I. L. R., 7
DiKstrn,eof All-> 853 o885)-
Evidence recor- Notwithstanding the introduction into the section of the words " the
d'ed partly by accused person " and " conviction," the provisions of section 328 of the Cri-
and arM1"'™'8 Ilimal Procedure Code apply to an enquiry instituted under section 491 with a
another. view to enforcing the giving of security against a breach of the peace, and in
such a case, where the Magistrate, by whom only part of the evidence has
been taken, is succeeded by another Magistrate while such enquiry is pending,
the person called upon to show cause why he should not give security may
insist, before the latter, upon the recall and re-examination of the witnesses
whose evidence has been already taken by the former Magistrate. Buroda
Kant Roy v. Karimuddi Moonshee, 4 Cal. L. R., 452 (1879).
A trial under the Town Nuisances Act of 188!) was begun before a bench Bench of M».
of Magistrates and adjourned. On the adjourned date the bench was consti- gistrates—
tuted differently, only one Magistrate being prescut of those who attended on SltuSonVSE
the tirst occasion; but the trial was proceeded with and resulted in a conviction : Court during a
Held, that the conviction was illegal and should be set aside. Queen-Emprets trM-
v. Basappa., I. L. K., 18 Mad., 3<J4 (1895).
351. (1 ) Any person attending a Criminal Court, although Detention of

not under arrest or upon a summons, may be detained by such tSSS^Court.
Court for the purpose of inquiry into or trial of any offence of
which such Court cm take cognizance and w hich, from the evi
dence, may appear to have been committed, and may be proceed
ed against as though he had been arrested or summoned .
[2) When the detention takes place in the course of an in

quiry under Chapter XVIII, or after a trial has been begun, the
proceedings introspect of such person shall be commenced afresh,
and the witnesses re-heard.
A Magistrate is not justified by section 206 of the Code of Criminal Pro- J^'^j0,",,"'
cedure, 1861, to take a persoa, without any previous notice or summons, from tending Court,
among the audience or attendant witnesses in open Court and place him in the
dock to be immediately tried upon a charge which had already been commenced
to be entertained against other prisoners and on which evidence had already
been given. That section applies to investigations preliminary to commitment
for a subsequent trial, and not to cases where the trial is actually being pro
ceeded with. The Queen v. Sutherland; Queen v. Narain Singh, 14 W.
H., 20(1870).
352. The place in which any Criminal Court is held for the courts to be
purpose of inquiring into or trying any offence shall be deemed an ope"'
open Court, to which the public generally may have f/gess, so far
as the same can convenient'y contain them :
Provided that the presiding Judge or Magistrate may. if he
thinks fit, order at any stage of any inquiry into, or trial of, any
particular case that the public generally, or any particular person,
sball not have access to, or be or remain in, the room or building
used by the Court.
CHAPTER XXV.
Of thb Mode of taking ano recording Evidence in

Inquiries and Trials.
353* Except as otherwise expressly provided all evidence Evident to be
taken under Chapters XVIII, XX, XXI, XXII and XXIII shall ^ ofV"*
be taken in the presence of the accused, or, when his personal at- CUied-
tendance is dispensed with, in presence of his pleader.
412 Proceedings in Frosecutions [Ch. XXV.
Muiiner of re- 354. In inquiries and trials (other than summary trials)
domaouuide un«!er this Code by or before a Magistrate (other than a Presiden-
wwii»!,|,t'J" cv Magistrate) or Sessions Judge, the evidence of the witnesses
shall be recorde I in the following manner.
Becord in sunv 355. (J) In summons-cases tried before a Magistrate other
in°triaisof "er- than a Presidency Magistrate, and in cases of the oflencea men-
n'rl't nHdSu'd- tioned in sub-section ( 1) of section 260, clauses (/>) to (m), both in-
c1h»» MngU- elusive, when tried by a Magistrate of the first or second class,
trn **" and in all proceedings under section 514 (if not in the course of a
trial), the Magistrate shall make a memorandum of the substance
of the evidence of each witness as the examination of the witness
proceeds.
(2) Such memorandum shall be written and signed by the
Magistrate with his own hand, and shall form part of the record.
(3) If the Magistrate is prevented from making a memoran
dum as above required, he shall record the reason of his inability
to do so, and shall cause such memorandum to be made in writing
from his dictation in open Court, and shall sign the same ; and
such memorandum shall form part of the record.
__ A Native Sub-Magistrate, who had not been authorised to take down evi-
moni-catm. dence in bnghsh, recorded the memorandum of the substance of the evidence
taken under section 355 of the Code of Criminal Procedure, 1882, in that
language : £Iel<l, that there was no provision in the Code prohibiting this pro
cedure, and that at any rate it was merely an irregularity which would not
vitiate the trial. Queen-Emj'resa v. Gopal Goumlan, I L. II., 19 Mad., 269
(1896).
i ecord in other 356. (/) In all other trials before Courts of Session and
prSenc"",sUto Magistrates other than Presidency Magistrates) und in all inqui-
lowiis. * ries under Chapters XII and XVIII, the evidence of each witness
shall be taken down in writing in the language of the Court, by
the Magistrate or Sessions Judge, or in his presence and hearing
and
signed
under
by the
his Magistrate
personal direction
or Sessions
and Jsuperintendence,
udge. and shall be
Evidence given (2) When the evidence of such witness is given in English
'" K""u*u the Magistrate or Sessions Judfje may take it down in that langu
age with his own hand, and, unless the accusod is familiar with
English, or the language of the Court is English, an authenticated
translation of such evidence in the language of the Court shall form
part of the record
Memorandum (3) In cases in which the evidence is not taken down in writ-
noXkln torn, ing by the Magistrate or Sessions Judge, he shall, as the exami-
tnitethor ^ndge n:lt'°n °f eacn witness proceeds, make a memorandum of the sub-
himseit. tance of what such witness deposes ; and such memorandum shall
be written and signed by the Magistrate or Sessions Judge with
his own hand, and shall form part of the record.
Ss 354-359] Proceedings in Prosecutions. 413
(4) If the Magistrate or Sessions Judge is prevented from

making a memorandum as above required, he shall record the
reason of his inability to make it.
357. (/) The Local Government may direct that in any L»ngwr<e or
district or part of a district, or in proceedings before any Court of dence.0 °u
Session, or before any Magistrate or class of Magistrates, the
evidence of each witness shall, in the cases referred to in section
356, be taken down by the Sessions Judge or Magistrate with
his own hand and in his mother-tongue, unless he is provented by
any sufficient reason from taking down the evidence of any wit
ness, in which case he shall record the reason of his inability to
do so, and shall cause the evidence to be taken down in writing
from his dictation in open Court.
(2) The evidence so taken down shall be signed by the Ses
sions Judge or Magistrate, and shall form part of the reord:
Provided that the Local Government may direct the Sessions
Judge or Magistrate to take down the evidence in the English
language, or in the language of the Court, although such language
is not his mother-t >ngue.
It is not necessary that a statement made to a Court by an accused in u statement to
foreign language should be taken down in the words of that language. The Magistrate in
language in which the statement is conveyed to the Court by the interpreter J^11"' a"su"
is the language in which it should be recorded. The Empress v. VaimbiUe ;
Vaimbilee v. The Empress, I. L. R., 5 Cal., 826 (1880).
358« In cases of the kind mentioned in section 355, the {^{JJ'"^^,;
Magistrate may, if he thinks fit t ike down the evidence of any under section
witness in the manner provided in section 356, or, if within the K"'
local limits of the jurisdiction of such Magistrate the Local Go
vernment has made tha order referred to in section 357, in the
manner provided in the same section.
359. (.1) Evidence taken under section 356 or section m«1o of rocoru-
357 shill not ordinarily be taken down in the form of question and u"*lcr ev^.et"on
answer, but in the form of a narrative. jJM «r section
(2) TIij Magistrate or Sessions Judge may, in his dis
cretion, take down, or cause to be taken down, any particular
question and answer.
[5 (Act X of 1873). Oaths or uftiruiatious shall be made by the i Oaths or nfflr-

following persons:- ESM *"
(a) all witnesses, that is to say, all persons who may lawfully [Witnesses 0
be examined or give, or be required to give, evidence by or before any
Court or person having, by law or consent of parties, authority to exa
mine such persons or to receive evidence ;
4M Proceedings in Prosecutions. [Ch, XXV,
[Interpreters;] (J) interpreters of questions put to, and evidence given by, wit
nesses ;
[Jurors] (c) jurorgi
Nothing herein contained shall render it lawful to administer in a
criminal proceeding an oath or affirmation to the accused person, or
necessary to administer to the official interpreter of any Court, after he
has entered on the execution of the duties of his office, an oath or affir
mation that he will faithfully discharge those duties.]
Procedure ta^ 360. (2) As the evidence of each witness taken nnder sec-
evidence0 when tion 856 or section 3o7 is completed, it shall be read over to him
completed. jQ ^ presence 0f the accused, it in attendance, or of his pleader,
if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the
evidence when the same is read over to him, the Magistrate or
Sessions Judge may, instead of correcting the evidence, make a
memorandum thereon of the objection made to it by the witness
and shall add such remarks as he thinks necessary.
(3) If the evidence is taken down in a language different
from that in which it has been given and the witness does not
understand the language in which it is taken down, the evidence
so taken down shall be interpreted to him in the language in which
it was given, or in a language which he understands.
Pronouncing In this case, after the evidence was adduced on both sides, the Assistant
writingVag0-"* Magistrate fixed a day for hearing argument and passing judgment. On that
ment Irre- day argument was heard, and the case adjourned to another day for judgment,
gulurity. when the Magistrate pronounced sentence, though he had not written his judg
ment. The judgment was, however, written on the evening of the same day.
Held, the judgment of the Assistant Magistrate was not in accordance with the
provisions of sections 366 and 367 of the Criminal Procedure Code, 1882. In
the circumstances of the case the omission of the Magistrate in recording a
judgment before pronouncing his sentence was an omission or irregularity
which fell within the purview of section 537 of the Code. The sentence
itself by reason of this irregularity was not an illegal sentence so as to render
the trial nugatory. Tilale Chandra Sarkar v. Baisagomoff, I. L. B., 23 Cal.,
502 (1896).
Depositions not A Sessions Judge, aftei hearing a general statement made by a mook-
uo"ui«d-Oral 'ear engaSe^ m t',e casei considered that the depositions of certain witnesses
evidence. taken in the Magistrate's Court did not conform with the requirements of sec
tion 380 of the Code of Criminal Procedure, 1882, and refused to admit the
depositions as evidence, and also refused to allow oral evidence to be given as
to the statements made by these witnesses. No objection was taken to the ad
mission of these depositions on behalf of the Crown ; the accused were even
tually convicted and sentenced to rigorous imprisonment Held on appeal,
that the conviction and sentence must be set aside. Adyan Sing v. Queen-
Empress, I. L. R., 13 All., 121 (1886).
Evidence not Section 339 of the Code of Criminal Procedure, 1872, being for the protec-
wTtn™8e°. °y tion of witnesses only the fact that witnesses did not understand their deposi
tions when read over, although they may have required them at the time to be
interpreted, affords no ground for an application by the accused to set aside a
conviction. In re Olchoy Kumar, 7 Cal. L. R., 393 (1880).
361> (?) Whenever any evidence is given in a language not Jp^jJ^ti°"0

understood by the accused, and he is present in person, it shall be accused or hi*
interpreted to bim in open Court in a language understood by him. pleader-
(2) If he appears by pleader and the evidence i* giv<*n in a

language other than the language of the Court, an! not understood
by the pleader, it shall be interpreted to such pleader in that langu
age.
(3) When documents are put in for the purpose of formal
proof, it shall be in the discretion of the Court to interpret as much
thereof as appears necessary.
Where a Magistrate beforo whom an accused person is brought omits to re- Disqualification
cord (as provided by section 3G4, Act X of 1882) statements made by the accus- °ry' ,.:„^s!r()t,f1is<l
ed, he does not thereby make himself a witness, and so becomes disqualified sion to record
from trying the case. The accused was convicted of criminul breach of trust '^^"'order'
in respect of certain money belonging to the complainant, and 011 his convic- as to disposal of
tion the Magistrate made an order under section 517 of the Code of 1882, di- property,
recting that an amount equal to the monies embezzled should be repaid to the
complainant out of certain sums of money found by the police on the person of
the accused. Held, that the Magistrate had no power to make the order under
section 517 of the Code, there being nothing to show that any offence had been
committed with regard to the property, or that it had been used for the com
mission of any offence. Queen-Eiipras v. Fattah Chand, I. L. 11., 24 Cal.,
49«.) (1897).
The sections comprised in Chapter XIV of the Criminal Procedure Code, Statement ot
1882, (except section 155) do not apply to the police in the presidency {Jpfoênqu'jrv^
towns, and consequently a statement or confession made to a Presidency Magis- Kxaniination' ot
trate does not come within section 164, and the procedure prescribed in regard accused not rc-
to the recording of statements or confessions by that section, and (by reference) ™" "in which "it
section 364 does not apply to statements and confessions recorded by a Presi- it given,
dency Magistrate before the commencement of the trial. But such statement
or confession, though not taken under section 164, is admissible in evidence
against the prisoner. During an enquiry before a Presidency Magistrate after
the evidence for the prosecution was taken, the Magistrate examined the ac
cused under sections 20'J and 342 of the Criminal Procedure Code, 1882. The ac
cused was examined in Marathi, but the questions and answers were recorded
in English. The Magistrate deposed at the trial that it was the invariable prac
tice in his Court to take down depositions in English, and that he could not him
self have accurately recorded the prisoner's statement in Marathi. He also
deposed that the statement was correctly recorded in English, and that each
question and answer when recorded was interpreted to the accused in Mara
thi, and that the accused then made his mark at the end of the recorded state
ment. He further stated that there were at hand native subordinate officials of
his Court who could h ive recorded the statement in Marathi, but that he him
self had not sufficient knowledge of Marathi as to he able to read what was
written by such a subordinate, or to satisfactorily check or test the correct
ness with which it represented the statement made by the accused. Held.
that, assuming that it was practicable to record the statement in Marathi, and
that consequently it was irregular, with reference to section 364 of the Code,
to record it in English, the statement was nevertheless admissible in evidence
under section 533, the irregularity not having injured the accused as to his
defence on the merits. Queen-Empress v. Vhram Babaji, I. L. B., 21 Bom.,
495 (1896).
416 Proceedings in Prosecutions. [Ch. XXV.
Confession not The confession of an accused person made in Bengali, the language in
htiitrunSc !"
wn'ch the accused was examined, was recorded in English. The committing
which it i» Magistrate, in his evidence in Court, said that he could not write Bengali well,
sibTliV"A<oT'*'in
a *na' *nere was n0 monttrr'r with him at the time when the confession
evideiice—Vn-" recorded. Held, the provisions of section 364 of the Criminal Procedure
soundness ot Code, 1882, had been sufficiently complied with. Where the unsoundness of
m " mind deposed to was not such as would make the accused incapable of know
ing the nature of the act, or that he was doing what was contrary to law, it
was held to be insufficient to exonerate him from responsibility for crime
under section 84 of the Penal Code. Queen-Empress v. Razai Mia, I. L. B.,
22 Cal., 817 (1895).
Evidence taken Where the evidence was taken down by the Magistrate in English, and
lish." K"g" no merao- was attached to it (as required by Beetion 199 of the Code of Crimi
nal Procedure, 1861), stating that the evidence was read over to the witness in
a language which he understood, it was held that there had been an error in
law by which the accused was materially- prejudiced. Queen v. Issur Raul,
8 W. B., 63 (1867).
a^cerdin0piSi"- 362. (/) In every casein which a Presidency Magistrate
dency Mmris- imposes a fine exceeding two hundred rupees, or imprisonment for
trates' Courts. a term
1 1
exceeding six months, he shall either take 1down the evi
dence of the witnesses with his own hand, or cause it to be taken
down in writing from his dictation in open Court. All evidence
so taken down shall be signed by the Magistrate and shall form
part of the record.
(2) Evidence so taken down shall ordinarily be recorded in
the form of a narrative, but the Magistrate may, in his discretion,
take down, or cause to be taken down, any particular question or
answer.
(3) Sentences passed under section 35 on the same occasion
shall, for the purposes of this section, be considered as one sen
tence.
Remarks res-
pcc'tinitdi•nie-in- 363. When a Sessions Judge or Magistrate has recorded
ourotwitnosf. the evidence of a witness he shall also record such remarks (if
any) as he thinks materia] respecting the demeanour of such wit
ness whilst under examination.
nccu^howK- 364. (/) Whenever the accused is examined by any Ma-

eorded. gistrate, or by any Court other than a High Court established by
Royal Charter or the Chief Court of the Punjab, the whole of sucn
examination, including every question put to him and every an
swer given by him, shall be recorded in full, in the language in
which he is examined, or, if that is not practicable, in the lang
uage of the Court or in English : and such record shall be shown
or read to him, or, if he does not understand the language in
which it is written, shall be interpreted to him in a language
which he understands, and he shall be at liberty to explain or add
to his answers.
Ss. 362-364] Proceedings in Prosecutions. 41?
(2) When the whole is made conformable to what ho de

clares is the trnth. the record shall be signed by the accused and
the Magistrate or Judge of such Court, and such Magistrate or
Judge shall certify under his own hand that the examination was
taken in his presence and hearing, and that the record contains a
full and trne account of the statement made by the accused.
(3) In cases in which the examination of the accused is not
recorded by the Magistrate or Judge himself, he shall be bound,
unless he is a Presidency Magistrate, as the examination proceeds,
to make a memorandum thereof in the language of the Court, or
in English, if he is sufficiently acquainted with the latter lang
uage ; and such memorandum shall be written and signed by the
Magistrate or Judge with his own hand, and shall be annexed to
the record. If the Magistrate or Judge is unable to make a
memorandum as above required, he shall record the reason of such
inability.
(4) Nothing in this section shall be deemed to apply to the
examination of an accused person under section 263.
Where a confession given in Hindustani was taken before a Sub-Divi- Examination of
sional Magistrate, and was recorded by the Court officer in Bengali, that lie- accused-De-
ing the language of the Court, and where it appeared that the Magistrate him- Son—OonSlf-^""
self was a Mahomedan and it was contended that he must be taken to have aion not record-
been able to record the confession in the language in which it was given, there jjLt*?^?!*8
being no evidence to the contrary : Held, in the absence of such evidence the riven—Adnuaai'
Court should presume that the proceedings of the Sub-Divisional Magistrate oility of.
were conducted in accordance with law, and that in the absence of anything
to show that it was practicable for the officers of his Court to record the
statement in Urdu, it could fairly be held that the Sub-Divisional Magistrate
found that was impracticable, and adopted the alternative allowed by law of
having the confession recorded in the Court language. Lalchand v. Queen-
Empress, I. L. B., 18 Cel., 549 (1891).
An accused, when in custody, made a confossion to a Deputy Magistrate, Examination of
in the presence of a sub-inspector, and during an investigation being held '^"^^Jfe,.
into a case of murder, under the provisions of Chapter XIV of the Criminal sj0n-Confeit-
Proeedure Code, 1882. The confession was recorded by the Deputy Magis- aion not record-
tratc in English, though made in Hindi, which the Deputy Magistrate perfect- ^h*"***
ly well understood and could write. It purported to have been recorded uuder given—Admiafi-
the provisions of section 164, and was in reply to one question which was set jj^01, in ev"
out. The record bore the signature of the accused and of the Deputy Magis
trate, as well as the certificate as required by the section. It occupied about five
pages of foolscap. At the trial the Sessions Judge excluded this confession on
the ground that, not having beer, recorded in the language in which it was
made, and there being no reason why it should not have been so recorded, the
document was inadmissible in evidence. He, however, called the Deputy
Magistrate as a witness and admitted in evidence his statement as to what
the accused told him. This evidence, which occupied only a few lines, was
to the effect that the accused told him he had committed the murder, and on
this evidence alone the accused was convicted. On appeal—Iield, that the pro
visions of section 164 read with section 364 are imperative as to the language
in which a confession is to be recorded, and that section 533 does not contem
plate or provide for any noK-compliance with the law in this respect, and that,
therefore, as it was not impracticable to record the confession in Hindi, the
27
4i8 Proceedings in Prosecutions. [Ch. XXV-
Sessions Judge was right in refusing to admit the document in evidence.

Held, further, that the Sessions Judge erred in admitting the oral evidence of
the Deputy Magistrate as to what the accused told him, as, seeing that he
was acting under the provisions of section 1(14 of the Criminal Procedure
Code, 1882, the confession was matter which was required by law to be re
duced to the form of a document, and therefore, under section 91 of the
Evidence Act, no evidence could be given in proof of such matter except the
document, where, as in this case, it was in existence and forthcoming. Held,
also, that as the defects in the record could not be cured under section 533 of
the Code, and no secondary evidence could be give, no proof of the confes
sion could be given, and tbe accused must he acquitted. Jai Narayan Jiai v.
The Queen-Empress, I. L. B., 17 Cal., 802 (189U).
Defect in con- An accused, in custody at the time, made to a Magistrate in Calcutta, in
de'ice"!^™! of t'ie course of a police investigation held in Calcutta, a statement confessing
1872). sections that he had murdered his father. The accused spoke and understood English,
Bidency^town* !ini' "10 Magistrate questiond him in English, and was answered sometimes in
investfrutiona English and sometimes in Bengali ; whenever the answers were given in Eng-
••>• lish they were so taken down, when in Bengali they were written down in
English and read over to the accused in that language;, wbo accepted the
English as being the meaning of that which he had stated, and signed the
document in the presence of the Magistrate who affixed the usual certificate
thereto. In taking this confession, the Magistrate purported to have acted
under sections 1(54 and 364 of the Criminal Procedure Code, 1882. At the
trial, subsequently to the admission of the confession in evidence under sec
tion 80 of the Evidence Act, the Magistrate was called as witness and
deposed to the above facts with reference to the language in which the con
fession was taken and the mode in which it was recorded : Held on a refer
ence to a Full Bench as to whether the confession was inadmissible in evi
dence by reason of some of the answers having boon given in Bengali but
recorded in English, that the provisions of section 1(54 of the Code had no
application to statements taken in the course of a police investigation made
in the town of Calcutta, and that consequently sections 3(54 and 533 had no
application : Held, nevertheless, that the document was properly admitted upon
the cvidenco of the Magistrate under the provisions of section 2(5 of the Evi
dence Act. Semble.—That the provisions of section 164, as read with section
364, would not ho complied with where answers made by an accused to a
Magistrate in one language are taken down in another, unless it could be
shown that it was impracticable to have taken down the answers in the lang
uage in which they were given ; and further, that there would he grave doubt
if such a defect could be cured by section 533. Queen-Empress v. Nil-
madhub Mitter, I. L. K., 15 Cal., 5!»5 (1888).
niTacru-md per- ^ '9 necessary that the English memorandum referred to in para. 3 of
noil -Evidence section 364 of the Criminal Procedure Code, 1882, should he made in respect
<ÂOTiifes«ioi'|,y °' confessions recorded under section 164, as the manner in which such a
not in ques- confession is to be recorded under tbe provisions of that section is fully set
wers— Memo'"" ou' 'n t'ie *'rS* two I)!iras- °^ secti"n 364. A confession of an accused person
rmidum in " wua recorded before a Deputy Magistrate by one of his clerks, under the pro-
Engllah. visions of section 164 of the Code, while the case was under investiga
tion by the police. No English memorandum of the nature referred to in
section 304 was made by the Deputy Magistrate. A further confession was
recorded by the Magistrate under the provisions of section 364 while the case
was being heard before him. Both confessions were recorded in narrative
form, and the questions and answers were not taken down. At the trial
before the Sessions Judge both confessions were put in evidence, and no
evidence was given under the provisions of section 533 of the Code that the
accused duly made the statements recorded. The accused was convicted
mainly on the strength of the confession. Held, upon the authority of the
decision in Titii Matja v. The Queen, that as the accused was not prejudiced
by the questions ami answers not being recorded, it was unnecessary for the
Judge to take evidence under section 533, and that the conviction based on
the confessions must be upheld. Fekoo Mahto v. The Empress, I. L. K., 14
Cal., 539 (1887).
A and B were charged with the murder of C, the husband of B. There ^"'j^JJ'i^'
was some evidence that B had said her husband was dead, a few days uftcr j'ence by" the
his disappearance ; and some bones, a skull, and some cloths, were found in a witness -
neighbouring burying ground, which were identified as those of C. B made a ^"J,"1,!1,*^—°
statement, recorded on June 4th by the village Munsif, to the effect that she hud Confessions,
lured C into a garden, and that A, who was her paramour, had murdered him
in her arms, which statement she repeated frequently with greater detail in
answers to questions from the committing Magistrate, and subsequently before
the Sessions Court. On her appeal to the High Court after she had been sen
tenced to death, site retracted her former statements, and made the usual charges
of ill-treatuient against the police. A made a statement to the committing
Magistrate, which he subsequently repudiated before the Sessions Court, to the
effect that he had assisted i 1 disposing of the corpse of Cat the request of his
brother-in-law, who corroborated the statement in two depositions before the
Magistrate, which were likewise repudiated by the deponent before the Sessions
Court. Held, that the conviction of .1 was wrong, and further (PARKER, J., dis
senting), that the conviction of B was wrong. Per Kkknan. J.—" As the se
cond prisoner has withdrawn all the confessional statements made by her, it is
necessary, according to the rulings of this Court, to examine the evidence,
and see if there is reliable independent evidence to corroborate to a material
extent and in material particulars the statements contained in the withdrawn
confessional statements. If no such corroborative evidence exists, then the
contradictory statements of the second prisoner remain, and doubt exists as to
which statement is true, and the confessional statements cannot be safely
relied on against the prisoner." Semble. - The same rule should be followed
when a witness withdraws his deposition before the Sessions Court. Per
Keunan", J.—The examination of an accused person under the Criminal Pro
cedure Code, 1882, section 3G4, is subject to the purpose referred to in section
342, viz., "to enable him to explain any circumstance appearing against him,"
and nut to supplement the case for the prosecution against him to show that he
is guilty. Queen-Empress v. Rangi, I. L. R., 10 Mad., 295 (1886-87).
The confession of an accused person was recorded in a simple narrative Examination ot
form intead of in the shape of question and answer as required by the Code Qu6st?onn?'or
of Criminal Procedure, 1872, section 340. There was nothing in the character answer - Re-
of
thatthethe
confession,
accused or
hadin been
the circumstances
prejudiced byofthetheerror.
case, to leadthat
Held, to the
the inference °°|])^'t*0""
error did "'""•a 0 ■
not affect the admissibility of the statement in evidence. The Empress v.
Munshi Sheikh, I. L. B., 8 Cal., 616 (1882).
When arraigning an accused, and before receiving his plea, the Court Necessity for
should be careful to insure the explanation of the chargj in a manner suffi- chnisre""*
ciently explicit to enable the accused to understand thoroughly the nature of accused -State
the charge to which he is called upon to plead. It is not necessary that n ment to Mairis
statement made to a Court by an accused in a foreign language should be Innguait/*
taken down in the words of that language. The language in which the state
ment is conveyed to the Court by the interpreter is the language in which it
should bo recorded. The Empress v. Vaimhilee, I. L. H., 5 Cal., 826 (1880).
The attestation required by section 346 of the Criminal Procedure Code, Confession—
1872, is unnecessary when a confession is made in Court to the officer trying *gJJ uaSeeef
the case at the time of trial. In re Chummaii Shah, I. L. H., 3 Cal., 756 sary
(1878).
42o Proceedings in Prosecutions. [Ck. XXV,
Kecord of <jues. The omission of a Magistrate to have recorded in the vernacular the
tionaaked, questions asked in the examination of the accused person does not necessarily
render thatB.,examination
I Cal. L. inadmissible as evidence. In re Tilu Mua avoellanl
(F. B.) 1 (1877). e '
Examination of An accused person whoso signature to a statement made by him to the
aoeuned—Preju- committing Magistrate is not taken, as provided in section 346 of the Code of
' ice* Criminal Procedure, is not prejudiced thereby within the meaning of that sec
tion, unless he is unfairly affected as to his defence on the merits. Reg. v.
Deva Dayal, 11 Bom. H. C, 237 (1874).
Examination of The direction of section 346 of the Code of Criminal Procedure, cnjoin-
accused-Dut.v ing that an accused person shall sign the record of his confession, is not satis-
of Judge. fied by the fojjow;ng Signature of A B (the accused); the handwriting
of CD" Where the conviction of a person was based upon a confession thus
subscribed, the High Court reversed it, and held that the Sessions Judge was
bound to prevent the production of such a confession. Reg v. Daya Anand,
II Bom. H. C, 44 (1874).
Examination of In recording the examinations of accused persons under section 346 of the
accused person Code of Criminal Procedure in the language in which they are given, a Magis-
—Certificate. nee(j nQt ta^0 ^Qwn t\l0 examination in his own hand ; it is enough that
he append a certificate that the examination was conducted in his presence, and
contains accurately all that was stated by the accused person. The Queen v.
Lucky Narain Dutt, 20 W. B., 50 (1873).
Evidence of pri- Held that, where the provisions of section 205 of the Code of Criminal
•oners—Certi(i- Procedure are not observed, and there is no certificate by the Magistrate that
the examination of the accused was taken in the hearing and in the presence of
that officer, and there is no statement that that examination contains the
whole statement of the accused, a Sessions Judge acts rightly in rejecting
the evidence, and not allowing it to go to the assessors. The Queen v. Radhoo
Jam, 12 W. B., 44 (1869).
Certificate by The certificate required under section 205 of the Code of Criminal Proce-
Mafijtrate or dure, 1861, need not be in the handwriting of the presiding officer, but may be
Judge. under his hand only, i. e., signed by him. Queen v. Rezza Hossein,H\X R., 55
(1867).
Examination ol Before criminating a man upon his own statement under examination, it
accused. js necessary to see that such statement has been deliberately made and re
corded ; that, after being recorded, it has been shown or read to the accused :
and that the examination has been attested by the signature of the Magistrate
following a certificate to be given under his own hand. Queen v. Mussamut
Nirtmi, 7 W. B., 49 (1867).
Confession of The prisoner retracted his statement when read over to him, and said
prisoner-Mis- that he was compelled to make it. The Judge, without making any enquiry
jury0''0" l° or '"king any evidence on the point, submitted the prisoner's statement to the
jury as a confession : Held, that the Judge was wrong in so doing, and that he
should rather have charged the jury not to accept the prisoner's statement as
a confession. Queen v. Gtmesh Koormee, 4 W. R., 1 (1865).
dT,r1n°HiVb 365. Every High Court established by Royal Charter and
Court.1" * the Chief Court of the Punjab may, from time to time, by general
rule, prescribe the manner in which evidence shall bs taken down
in cases coming before the Court, and the Judges of such Court
shall take down the evidence or the substance thereof in accord
ance with the rule (if any) so prescribed.
CHAPTER XXVI.
Of the Judgment.
366. (1) The judgment in e\ery trial in any Criminal ^Sîent!"
Court of original jurisdiction shall be pronounced, or the substance
of such judgment shall be explained—
(a) in open Court either immediately after the termination of
the trial or at some subsequent time of which notice shall
be given to the parties or their pleaders, and
(/<) in tlie language of the Court, or in some other language
which the accused or his pleader understands :
Provided that the whole judgment shall be read out by the
presiding Judge, if he is requested so to do either by the prosecu
tion or the defence.
(2) The accused shall, if in custody, be brought up, or, if not
in custody, be required by the Court to attend, to hear judgment
delivered, except where his personal attendance during the trial
has been dispensed with and the sentence is one of fine only or
he is acquitted, in either of which cases it may be delivered in
the presence of his pleader.
(3) No judgment delivered bv any Criminal Court shall be
deemed to be invalid by reason only of the absence of any party
or his pleader on the day or from the place notified for the delivery
thereof, or of any omission to serve, or defect in serving, on the
parties or their pleaders, or any of them, the notice of such day and
plac?.
(J) Nothing in this section shall be construed to limit in
any way the extent of the provisions of section 537.
A Magistrate 011 a charge of rioting passed sentenced on tho accused Mattmtrnt.- pa»»-
without delivering his judgment in open Court, the judgment (one in course j'« fPttS b8"
of heing written during the hearing of tho case) heing in fact not then com- hiTjud^ment—
pleted. The case went on appeal to the Sessions Judge, who dealing fully with Irregularity,
the evidence taken before the Magistrate, confirmed the conviction and sen
tence. Held, per Pri.nskp and Trevelvan, JJ., that the judgment of the Magis
trate was not one in accordance with the law as laid down in section 366 of
the Criminal Procedure Code, 1882 : hut held by Prinsep and O'Kinealy, JJ.,
(Trevei.yan, J., dissenting), that the irregularity was one contemplated by
section 537 of the Code, and not having occasioned any failure of justice,
it did not necessitate a re-trial of the case. Per Trevelyan, J.—The case was
more than one of mere " error, omission or irregularity " within the meaning
of section 537 : the judgment having been irregularly arrived at and pro
nounced, there was no " judgment " in accordance with law, and therefore
no fair trial to which every accused person is entitled : the cause ought there
fore to be re-tried. Damn Senapati v. Sridhar Rancor, I. L. R., 21 Col., 121
(1893).
422 Proceedings in Prosecutions, [Ch. XXVI.
JudKinent- A sentence which has been passed or a direction that an accused be set
Sentence. at liberty which has been given at a Sessions trial before the judgment requir
ed by section 367 of the Code of Criminal Procedure, 1882, has been written,
is illegal. Queen-Emprets v. Hargobind Singh, I. L. R., 14 All., 242 (1892).
Sessions trial— Where a person accused before a Sessions Court is acquitted the order
Order of acquit- directing him to be set at liberty must form part of the judgment of the
wl'ich'sui'h or- Court and does not become operative until such judgment is pronounced in
deriito bo open Court. Where therefore in a Sessions trial two of several accused per-
passcd. BOng were acquitted by means of separate orders bearing date the 31st of Octo
ber, 1891, and the judgment of the Court was dated the Oth of November, 1891,
held, that the orders of acquittal so passed were illegal orders, and that the
saving provisions of section 537 of the Code of Criminal Procedure, 1882,
could not be applied to them. Queen-Empress v. Abdul Majid Khan, W. N.,
N.-W. P., 157 (1892).
Latuctiainsof 367. (/) Every such judgment shall, except as otherwise
SotSmuoi expressly provided by this Code, be written by the presiding offi-
jud*n.ent cer ofthe Court in tne fcngnage 0f the Court, or in English ; and
shall contain the point or points for determinate in, the decision
thereon and the reasons for the decision ; and shall be dated and
signed by the presiding officer in open Court at the time of pro
nouncing it.
(2) It shall specify the offence (if any) of which, and the
section of the Indian renal Code or other law under which, the
accused is convicted, and the punishment to which he is sen
tenced
alternative (^) When the conviction is under the Indian Penal Code,
* * and it is doubtful under which of two sections, or under which of
two pnrts of the fame section, of that Code the offence falls, the
Court shall distinctly express the same, and pass judgment in the
alternative.
{4) If it be a judgment of acquittal, it shall s+ate the offence
of which the accused is acquitted and direct that he be set at
liberty.
(5) If the accused is convicted of an offence punishable
with death, and the Court sentences him to any punishment other
than death, the < 'ourt shall in its judgment state the reason why
sentence of death was not passed :
Provided that, in trials by jury, the Court need not write
a judgment, but the Court of Session shall record the heads of
the charge to the jury.
Judgment of A Magistrate having special powers under section 34 of the Code of
appelate Court (}rjnljnfti Procedure, 1882, convicted one P B under sections 471 and 47fi of
judgment nnut the Indian Penal Code and sentenced him to four years' rigorous imprison-
oontain. mcnt. P B appealed to the Sessions Judge, and on that appeal the Sessions
Judge recorded the following judgment : " I have perused the reconl and
see no cause for interference with the finding of the District Magistrate. A
regards the sentence, it is not excessive ; but, having regard to the great age
of the appellant, I will reduce it to three years' rigorous imprisonment with
three month's solitary confinement." Held, that this judgment was in com
pliance with the provisions of section 307 of the Code, read with section 424
of the same Code. Queen-Empress v. Pandeb Bhat, I. L. R., 19 All., 506
(1897).
In this case, after the evidence was adduced on both sides, the Assistant Pronouncing
Magistrate fixed a day for hearing argument and passing judgment. On that ™"jtf"jj° jud*?
day argument was heard, and the case adjourned to another day for judg- mcnt--IrrcKiila-
ment, when the Magistrate pronounced sentence, though ho had not written rity-
his judgment. The judgment was, however, written on the evening of the
same day. Held, the judgment of the Assistant Magistrate was not in accor
dance with the provisions of sections 366 and 367 of the Code. In the cir
cumstances of the case the omission of the Magistrate in recording a judg
ment before pronouncing his sentence was an omission or irregularity which
fell within the purview of section 537 of the Code. The sentence itself by
reason of this irregularity was not an illegal sentence so as to render the trial
nugatory. Tilak Chandra Swkar v. Baisagomoff', I. L. R., 23 CaL, 502
(1896).
Where the collecting member of a panchayet, constituted under the 0»der imposing
provisions of the Village Chowkidari Act (Bengal Act VI of 1870), was fined f,'i'vi^mUOffl.
by the Sub-Divisional Officer of Serampore under section 8 of the Act for cer—Judicial
having disobeyed his orders and realised assessment from the villagers under °jj®r bj^ th
the Act from the month of Baisakh, though the Act was not introduced into High Court,
the sub-division till the month of Kartik following : Held., the tine having
been imposed by a Magistrate under the provisions of an Act of the Bengal
Council, it was imposed in respect of an " offence " as defined by section 4,
clause (/>) of the Criminal Procedure Code, 1882, and by virtue of section 4 of
Bengal Act V of 1867, the provisions of sections 63 to 70 of the Penal Code
and sections 386, 387, 388, 389 of the Criminal Procedure Code, wore applica
ble to the fine. The order of the Sub-Divisional Officer was in its nature a
judicial order, and was therefore subject to revision by the High Court. The
order was bad because (1) there was no trial ; (2) no act punishable with fine
under section 8 of the Act (Bengal Act VI of 1870) had been committed; and
(3) because the District Magistrate only had the power to impose the fine.
Queen-Emi>res8 v. Ashwini Kumar Ghose, I. L. B., 23 CaL, 421 (1896).
Section 213 of the Penal Coiie is applicable only when it is proved that Screening an
the person screened or attempted to be screened from legal punishment has offender-
been guilty of an offence, and not when there is merely a suspicion of his
having committed some offence. On appeal the Sessions Judge gave the
following judgment : —" After reading the evidence and hearing the learned
counsel for the appellant and the learned Government pleader, I am con
vinced that the Deputy Magistrate has decided the case rightly. The appeal
is dismissed." Held, that the judgment was not in accordance with the law
within the meaning of sections 367 and 424 of the Criminal Procedure Code,
1882 Girish Myte v. Queen-Empress, I. L. R.,23 CaL, 420 (1896).
A Deputy Commissioner, after hearing an appeal from a Deputy Magis- Form and con-
trate who hail convicted the appellants of rioting, gave the following judg- tent' ot judg
ment:—" After hearing the arguments of the pleader for the appellants and mentTn "crTml-
examining the record, I am of the opinion that the lower Court had ample nal appeal,
ground for convicting the accused of rioting. I do not consider the sentence too
severe. Appeal dismissed." Held, that this was not a judgment within the
meaning of sections 367 and 424 of the Code of Criminal Procedure, 1KK2,
and that the appeal must be re-heard. Farkan v. Somsher Mahomed, I. 1). R.,
22 CaL, 241 (1894).
424 Proceedings in Prosecutions. [Ch. XXVI.
Form and eon- A Sessions Judge in disposing of a criminal appeal recorded the follow-
tent» of judging judgment : —"The appellants have been convicted of breaking into Han's
m*at' house at night, dragged Hari's wife to the fields and dishonoured her, though
they did not have intercourse with her. I have read through the evidence, and
heard the appellant's pleader, and I think that the Deputy Magistrate was quite
right to believe tho evidence. The sentence of one year's imprisonment and
Rs. 50 fine is not heavy. I dismiss the appeal." It was contended that this was
not a judgment within the terms of section 367 of the Code of Criminal Proce
dure. Held, that having regard to the provisions of section 537, it docs not
follow that because the form of a judgment does not exactly comply with all
the requirements of section 367, it is not a valid judgment, and that as this judg
ment showed that the Sessions Judge had appreciated the point that the prose
cution had to establish, viz., the credibility of the evidence of the witnesses for
the prosecution, and had expressed his opinion on that point, there being
nothing to show that any other point was raised before him, it was not a case
in which the High Court should exercise its revisional powers. Rohimuddi
v. Queen-Empress, I. L. 8., 20Cal., 353 (1892).
Content! of A District Magistrate, in disposing of an appeal, recorded the following
judimont— judgment :—" The affray was faction fight between members of the two parties
nndim? " nece£* >nto which the society of Dhunshi seems to be split up. There is no good ground
mar. for doubting the justice of thelMagistratc's finding that the two appellants took
part in the affray, and that the party to which they belonged were the aggres
sors. The appeal is dismissed, and the conviction and sentence are confirm
ed." Held, that this was not a judgment in accordance with sections 367
and 424 of tho Code of Criminal Procedure, 1882. In re Shivappa v. Shid-
lingappa, I. L. B., 15 Bom., 11 (1888).
Form and con- ^ Magistrate after hearing an appeal from the Deputy Magistrate, gave
mint. " the following judgment :—" I see no reason to distrust the finding of the
lower Court. The sentence passed, however, appears harsh. I reduce the
term of imprisonment to fifteen days. The fines and terms of imprisonment
in default will stand." Held, following the decision in hamnuldin Dai v.
Sonatun Maiidal (I. L. R., 11 CaL, 449), that it was not a judgment within
the meaning of sections 367 and 424 of the Criminal Procedure Code,
1882. In re Ram Das Maghi, I. L. R., 13 CaL, 110 (1886).
Contenti of A Sessions Judge, after hearing an appeal, gave the following judg-
judgment. ment:—"It is urged that the evidence is quite untrustworthy, and that the
decision should lie reversed. The depositions have l>een gone through, and
commented on at considerable length. The Court finds no ground for inter
ference. The appeal is dismissed." Held, that this was not a sufficient
compliance with sections 367 and 424 of the Code of Criminal Procedure,
1882, and that the case should be retried. Kamnuldin Dai v. Sonatun
Mandal,!. L. R., 11 CaL, 449 (1885).
Alternative To support a finding upon an alternative charge of perjury, ther.' must be
charge—Per- legal evidence of the truth of each branch of the charge The deposition of
jury- the prisoner given in Hindustani but taken in English by the Magistrate, and
the memorandum at the foot of the deposition that it was read to the witness,
and was by him acknowledged to be correct, though held not to be quite
satisfactory (as the person who took down in English what the prisoner had
said in Hindustani was not examined as a witness, and the prisoner had no
opportunity of cross-examining him), was admitted as a proper deposition
within the provisions of the Code of Criminal Procedure, and the memoran •
dum was taken under section 80 of the Code of 1872, as evidence of the facts
Btated in it, and as affording some evidence that the translation was correct.
The Queen v. Gonowri, 22 W. R., 2 (1874).
Ss. 368-369.] Proceedings in Frosecutions. 425
Held by the majority (Jackson, J., dissenting), that a charge framed on Alternative
the model given in Schedule III of the Code of Criminal Procedure, charging eVidonce.
the accused upon two charges with having made contradictory statements in the
course of judicial proceedings under section 193 of the Penal Code, is a good
charge, and that (Phear and Jackson, JJ., dissenting), the Court or jury, if
convicting, need not, by direct evidence, tind which of the two statements is
false ; all that is necessary being that the Court or jury should find that the
allegations made in the charge are proved. The Queen v. Mahomed Humayoon
Shah, 21 W. B., 72 (1874).
An alternative finding under section 381 of the Codo of Criminal Proce- fliSSnlT—Fnise
dure, 1801, should not be resorted to until both the committing officer and the evidence.
Sessions Judge are satisfied that no reliable evidence is procurable in support
of one or other of the charges ; and such a finding cannot be based in a case of
giving false evidence upon two statements which are not absolutely contradic
tory the one of the other, nor when in one of them the accused gives only
hearsay evidence. Every presumption in favour of the possible reconciliation
of the statements must be made. The Queen v. liedoo Noshyo, 12 \V. R., 11
(1869).
308. (1) When any person is sentenced to death, the sen- oi
tence sh dl direct that he be hanged by the neck till he is dead.
(2) No sentence of transportation shall specify the pl*ce to JJSHjSrtittoii.

which the persun sentenced is to be transported.
For form of warrant of commitment under sentence of death,

see schedule V, No. 34.
For form of warrant of execution of a sentence of death,
see schedule V, No, 85.
369. No Court, other than a High Court, when it ha S Court not to

signed its judgment, shall alter or review the same, except as pro- alter iudgme"'-
vided in sections 395 and 481, or to correct a clerical error.
A Division Bench of the High Court has not, under section 439 of the Revinional
Codo of Criminal Procedure, 1882, any power to review its judgment pro- ffTJSnJent"'*
nounced on revision in a criminal case. Queen-Empress v. C. P. Fox, I. L. iuih Court.
P.., 10 Bom., 176 (1885).
The High Court has no power, under section 369 of the Criminal Proce- Reviewof judg-
dure Code, 1882, to review an order dismissing an application for revision meIlt_Criraina'
made by an accused person, and the only remedy is by an appeal to the prero- CMe"
gative of the Crown as exercised by the Local Government. Per Brodhubst
J.—The Legislature has not conferred in express words upon a High Court
the power of reviewing its judgments in all criminal cases as it has done under
the Civil Procedure Code in civil cases ; and the provisions of section 369 of
the Criminal Procedure Code, so far as they affect the High Court, apply
merely to questions of law arising in its original jurisdiction, and which are
reserved and are subsequently disposed of under the provisions of section 434
of the Criminal Procedure Code and sections 18 and 19 of the Letters Patent
for the HiglnCourt of the North-Western Provinces. Queen-Empress v. Duron
Charon, I. L. R., 7 All., 672 (1885). J
426 f-roceedings in Prosecutions [Ch. XXVI.
Appeal—Revi An order under section 278 of the Code of Criminal Procedure, 1872, by
sion. the appellate Court, rejecting an appeal on a perusal of the petition of
appeal and the copy of the judgment or order appealed against and without
calling for the record and proceedings of the ease, is a final order falling with
in the scope of section 285, and is not subject to revision. Empress v. Ma
homed Yashin, I. L. H., 4 Bom., 101 (187'J).
Presidency 370. Instead of recording a judgment in manner herein

Magistrate's before provided, a Presidency Magistrate shstll reord the follow
incitement.
ing particulars : —
(a) the serial number of the case ;
(/-) the date of the commission of the off-nice ;
(c) the name of the complainant (if any) ;
((f) the name of the accused person, and (except in the case
of an European British subject) his parentage and resi
dence ;
<e) the offence complained of or proved ;
(/) the plea of the recused and his examination (.if any) ;
(y) the final order ;
(A) the date of such order ; and
(t) in all cases in which the Magistrate inflicts imprisonment,
or fine exceeding two hundred rupees, or both, a brief
statement of the reasons for the conviction-
Summary pro The meaning of section 370, clause (/') of the Code of Criminal Procedure,
cedure—Convic 1882, is that, where the offence found is sufficiently grave to involve a fine of
tion, reasons Ks. 200 or imprisonment as the substantive sentence, the Magistrate is bound
for.
to record his reasons for the conviction, so as to enable the party to bring the
matter up to the High Court ; but in petty cases, which can be met by a fine
of a few rupees, the decision of the Magistrate may be recorded shortly. A
sentence of a tine of l!s. 10, and imprisonment in default of payment of the
fine, is not a sentence of imprisonment within the meaning of the section.
Moteeram v. Belaseeram, I. L. R., 14 Cal., 174 (1880).
Summary trial— In every ease which is not appealable to the High Court, a Presidency
Conviction in Magistrate should state his reasons for convicting the prisoner, so that the
non .apnea Inble High Court may judge as to whether there were sufficient materials before
case - High
Court ns a the Magistrate to support the conviction. In a case where the accused was
Court of Revi convicted of theft and sentenced to six months' rigorous imprisonment, the
sion
notes of the evidence taken by the Magistrate did not afford sufficient materials
npon which the prisoner could he legally convicted, and the Magistrate had
omitted to record his reasons for the conviction under section 370, clause ((') of
the Code of Criminal Procedure, 1882. Held, by the High Court as a Court
of Revision, that the conviction and sentence must be set aside, notwithstanding
the provisions of section 437 of the Code. Yacoob v. Adamson, I. L. R.. 13
Cal., 272 (1886).
Ss. 370-375] Proceedings in f rosecutions. 427
Under clause (h) of section 227 of tlie Criminal Procedure Code, 1872, Eeoordinn rea-_
although a Magistrate is not required to record any evidence, lie should in re- J?on-Practico°"
cording his reasons for the conviction, state them, so that the High Court, on of High Court
revision, may judge whether there were sufficient materials heforo him to 011 revision,
support the conviction. Where tliey were not so stated, the High Court on
motion set the conviction aside. The Empress v. Punjab Singk, I. L. H., 6
Cal., 579 (1881).
371. (/) On the application of the accused a copy of the Judgment to be
ju'gment, or, when he so desires, a translation in his own lang- copyKirento
uage, if practicable, or in th* language of the Court, shall be given accused-
to him without delay. ISuch copy snail, in any case other t1 an a
summons-case, be given free of cost.
(2) In trials by jury in a Court of Sessions, a copy of the
heads of the charge to the jury shall, on the application of the ac
cused, be given to him without delay and free of cost.
(3) When the accused is sentenced to death by a Sessions ^nl£!n°fed,*o8(m
Judge, such Judge shall further in form liim of the period within death"0
which, if he wishes toappeil, his appeal should bo preferred.
372. The original judgment shall be filed with the record ftftSXiwE!
of proceedings, and, where the original is recorded in a different
language from that of the Court, and the accused so requires, a
translation thereof into the language of the Court shall be added
to such record.
373. In cases tried by the Court of Session, the Court shall foscndfw"i°o'f
forward a copy of its finding and sentence (if any) to the District flmUtw and aen-
Magistrate within the. local limits of whose jurisdiction the trial lESteS****
was held.
CHAPTER XXVII.
Of the Submission of Sentences fob. Confiumation.
374. When the Court of Session passes sentence of death, SjjStoTbjJ

the proceedings shall be submitted to the High Court and the sen- inbmttted by
tence shall not be executed unless it is confirmed by the High sion?
Court.
For form of warrant of commitment under sentence
oj death, see schedule V, No. 34.
375. (I) If when such proceedings are submitted the High E5S5r*to5'|2
Court thinks that a further inquiry should be made into, or addi- to be mada or
tional evidence taken upon, any point bearing upon the guilt or deiico"to"boCV1'
innocence of the convicted person, it may make such inquiry or tttkon"
take such evidence itself, or direct it to be made or taken by the
Court of Session.
428 Proceedings in Prosecutions. [Ch. XXVII .
(2) Such inquiry shall not be made nor shall such evidence
be taken in the presence of jurors or assessors, and, unless the
High Court otherwise directs, tin presence of the convicted per
son may be dispensed with when the same is made or taken.
(3) "When the inquiry and the evidence (if any) are not made
and taken by the High Court, the result of such inquiry and the
evidence shall be certified to such Court.
Power of Hinh 376. In any cnse submitted under section 374, whether
^"lencVor^nu- towd with the aid of assessors or by jury, the High Court—
""' ,"m"1"'"' (a) may confirm the sentence, or pass any other sentence war
ranted by law, or
{!>) may annul the conviction, and convict the accused of any
otfence of which the Sessions Court might have convicted
him, or order a new trial on the same or an amended
charge, or
(c) may acquit the accused person :
Provided that no order of confirmation shall be made under
this section until the period allowed for preferring an appeal has
expired, or, if an appeal is presented wichin such peri >d, until such
appeal is disposed of.
Confirmation or 377. In every case so submitted, the confirmation of the
beWJiS,nedlcei!? sentence, or any new sentence or order passed by the High Court,
twoJudKeH. shall, when such Court consists of two or more Judges, be made,
passed and signed by at least two of them.
Procedure in 378. When any such case is hefrd before a Bench of
en" ouphiton' Jutlges ana< sucn Judges are equally divided in opinion, the case,
' with their opinions thereon, shall be laid before another Judge,
and such Judge, after such hearing as he thinks fit, shall deliver
his opinion, and the judgment or order shall follow such opinion.
Procedure in 379. In cases submitted by the Court of Session to the
teTtoViwi'1" ^'#n ' ourtfor the cmfirmation of a sentenc3 of death, the proper
court for con- officer of the High Court shall, without delay, after the order of
"r""'"""' confirmation or other order has been made by the High Court.
send a copy of the order, under the seal of the High Court and
attested with his official signature, to the Court o! Session
Procedure in 380. Where proceedings are submitted to a Magistrate of
case* submitted the first class or a Subdivisional Magistrate as provided by s»c-
not empowered tion 502, sucli Magistrate may thereupon pass such sentence or
•ec'iionclis" make such order as he might have passed or made if the case
had originally been heard by him, and, if he thinks further in
quiry or additional evidence on any point t■> be necessary, he may
make such inquiry or take such evidence himself or direct such
inquiry or evidence to be made or taken.
Section 36 of the Criminal Procedure Code, 1872, as regards the necessity Conflrmition of
for confirmation of the sentence by the Sessions Judge, refers to cases in J^Jf^fs jUige
which the sentence of imprisonment is a sentence of upwards of three years,
without including any additional sentence as to fine or whipping. The Em
press v. Shumsher Khan, I. L. R., G Cal., 024 (1881).
CHAPTER XXVIII.
Of Execution.
381* When a sentence of death passed by a Court of Sea- Execution ot
sion is submitted to the High Court for confirmation, such Court S„aer p«wtuJii
of Session shall, on receiving the order of confirmation or other S78-
order of the High Court thereon, cause such order to be carried
into effect by issuing a warrant or taking such other steps as
may be necessary.
For form of warrant »f execution oj a sentence of death, see
schedule V, No. 35.
3B2. If a woman sentenced to death is found to bo preg- Postponement

nant, the High Court shall order the execution of the sentence to ô^'pr^'
be postponed, and may, if it thinks fit, commute tbe sentence to "«•'*<«"«>•
transportation for life.
For form of warrant after a commutation of a sentence, sre
schedule V, No. 3G.
383- Where the accused is sentenced to transportation or Execution of
imprisonment in cases other than those provided for by section importation
3*1, the Court passing the sentence shall forthwith forward a war- ^'"[îVer
rant to the jail in which he is, or is to be, c mfined, and unless
the accused is already confined in such jail, shall forward him to
such jail with the warrant.
For forms of warrants, see schedule V, Nos. 29 Sf 36.
38%< Every warrant for the execution of a sentence of Direction of
imprisonment shall be directed t » the officer in charge of the jail "iSon^
or other place in which the prisoner is, or is to be, confined.
385. When the prisoner is to be confined in a jail, the w»rrani with
warrant shall be lodged with the jailor. ,wl>°»" **> l«
[10 (Act V of 1871). Officers in charge of prisons situate out- [Officers in
side the local limits of the ordinary original civil jurisdictions of the ^.''.Tmny'iSve
High Courts of Judicature at Port William, Madras and Bombay, shall {'"^'of OTrtsir
be competent to give effect to any sentence or order or warrant for the courts?] corU"''
detention of any person passed or issued by any Court or tribunal acting
under the authority of Her Majesty, or of the Governor-General in
Council, or of any Local Government.]
430 Proceedings in Prosecutions. [C. XXVI It.
[Warrant of [17 (Act V of 1871). A warrant under the official signature of an

officer of such officer of such Court or tribunal shall be sufficient authority for holding
Court to be
sufficient any prisoner in confinement, or for sending any prisoner for transporta
authority.]
tion beyond sea, in pursuance of the sentence passed upon him.]
[Procedure [18 (Act V of 1871). Any officer in charge of a prison doubting
where jailor
doubts tliu the legality of any warrant sent to him for execution under this Part, or
legality of war
rant sent to the competency of the person whose official seal and signature are affix
him for execu ed thereto to pass the sentence and issue such warrant, shall refer the
tion.]
matter to the Local Government, by whose order on the case such officer
and all other public officers shall be guided as to the future disposal
of the prisoner.
Pending any such reference, the prisoner shall be detained in such
manner and with such restrictions or mitigations as may be specified in
the warrant.]
Warrant for 386> Whenever an offender is sentenced to pay a fine, the
levy of fine. Court passing the sentence may, in its discretion, issue a warrant
f<>r the levy of the amount by distress and sale of any moveable
property belonging to the offender, although the sentence directs
that, in default of payment of the fine, the offender shall be impri
soned.
For form of loarrant to leoy a fine by distress and safe, see
schedule V, No. 37.
[Fine leviable [70 (P. C). The fine, or any part thereof which remains unpaid,
within six may be levied at any time within six years after the passing of the sen
years or during
imprisonment.] tence, and if, under the sentence, the offender be liable to imprisonment
for a longer period than six years, then at any time previous to the ex
[Death not to piration of that period ; and the death of the offender does not discharge
discharge pro from the liability any property which would, after his death, be legally
perty from
liability.] liable for his debts.]
Warrant—Claim A Magistrate, who has issued a distress warrant under section 386 of the
by third party Criminal Procedure Code, 1882, is not required by law to try any claim which
to the property may bo preferred to the ownership of the property distrained. Queen-Em
distrained.
press v. Gasper, 1. L. R., 22 Cal., 93,j (18U4).
Cattle Trespass An accused was found to have loosed the complainant's cattle at night
<I of 1871), from a cattle pen, and to have driven tlieni to the pound with the object of
section 22—Ille sharing with the pound-keeper the fees to bo paid for their release. He was
gal seizure of
cattle—Theft - proceeded against under Act I of 1871 (The Cattle Trespass Act), and under
Compensation- the provisions of section 22 ordered to pay compensation to the complainant,
Fine. and in default to undergo one month's rigorous imprisonment. Held, that
section 22 was inapplicable to the facts of the case, and that the order must
be set aside. On the facts it was not a case of "illegal seizure and deten
tion " of cattle, but rather one of theft, as all the elements of that offence
were present, and the accused should have been charged witli and tried for
that otfence. Held, further, that the sentence of imprisonment in default of
payment of the compensation was not warranted by law. Compensation may
be levied as a fine, and the ordinary mode of levying fines is laid down in
section 386 of the C-xle of Criminal Procedure, 1882 The law nowhere pro
vides that fines may be levied by means of imprisonment. Paryag Rai v.
Arju Mian, I. L. B., 22 Cal., 139 (1894).
Where u person wan fined under the Penal Code and died before the fine Fine, levy of-
was paid, and the Magistrate ordered the lino to he realize 1 by sale of his (JSemKwdMfh
joint moveable property, and that being found insufficient to cover the fine, of person fined,
his immoveable property was also attached under the order. Held, that the
liability of the immoveable property of the deceased could not bo enforced by
distress. The Queen-Eatress v. Sita Nath Mitra, I. L. B., 20 Cal., 478
(1892).
Where a Magistrate of the first class having sentenced an accused person Judicial act
to three years' rigorous imprisonment and lis. 500 line under sections 379 and Hmfuofthe
411 of the Penal Code, and having issued a warrant purporting to act under officer's juris-
section 386 of the Criminal Procedure Co le, 1882, for the levy of the tine by diction-LiuM-
distress and sale of cattle belonging to the accused, sold such cattle before the officers'." 'C"
date fixed for the sale, and in contravention of Form 37, Schedule V, and
section 554 of the Code, and Form D in Chapter Vr of the Circular Orders of
the High Court : Held, that he was acting in the discharge of his judicial duty
within his jurisdiction as a Magistrate of the first class ; that, under such cir
cumstances, it was immaterial that he did not in good faith believe himself to
have jurisdiction to sell the property in the manner he did ; and that the fact
that he acted with gross and culpable irregularity did not deprive him of the
protection afforded by Act XVIII of 1850. Teyen v. Ham Lai, 1. L. R., 12
All., 115 (1890).
Held by the majority of the Court that an offender, who has undergone Distress mid
the full term of imprisonment to which he was sentenced in default of the »<de of move-
payment of a fine, is still liable to have the amount levied by distress and iSprSonmenlr
sale of any moveable property belonging to him which may be found within indefnult of
the jurisdiction of the Magistrate of the District, whether the officer who j[u^1I,cnt of
inflicted the fine issued any special directions on the subject or not. Queen-
Empress v. Modoosoodun Day, 3 W. It., 61 (1865).
387. Such warrant may bo executed within the local limits Meet of such
of the jurisdiction of such Court, and it shall authorise the dis warrant.
tress and sale of any such property without such limits, when en
dorsed by the District Magistrate or Chief Presidency Magistrate
within the local limits of whose jurisdicti m such property is found.
[70 (P. C). The fine, or any part thereof which remains unpaid, [Ki„0 ievinhto
may be levied at any time within six years after the passing of the sen- within six years
tence, and if, under the sentence, the offender be liable to imprisonment SonSent!]™
for a longer period than six years, then at any time previous to the ex
piration of that period ; and the death of the offender does not dis- [Death not to
charge from the liability any property which would, after his death, be d)^1"n^mpro"
legally liable for his debts.] lUbflity ]
3B8. (/) When an offend *r has been sentenced to fine suspension of
only and to imprisonment in default of payment of the fine, and "^"'o" impri'
the Court issues a warrant under secti >n 3tst>, it may suspend the ■onment.
execution of the sentence of imprisonment and may release the
offender on his executing a bond, with or without sureties, as the
Court thinks fit, conditioned for his appearance before such Court
on the day appointed for the r -turn to such warrant, such day
not bein<; moro than fifteen days from thp time of executing the
bond ; and in the eve;it of the fine not having been realized the
Court may direct the sentence of imprisonment to be carried into
execution at once.
432 Proceedings in Prosecutions. [C. XXVIII.
(2) In any case in which an order for the payment of

money has been made, on non-recovery of which imprisonment
may be awarded, and the money is not paid forthwith, the Court
may require the person ordered to make such payment to enter
into a bond as prescribed in sub-section (i), and in default of his
so doing may at once pass sentence of imprisonment as if the
money had not been recovered.
warrant"5' ',,ue 389. Every warrant for the execution of any sentence
may be issued either by the Judge or Magistrate who passed the
sentence, or by his successor in office.
Execution of 390. When the accused is sentenced to whipping only, the
sentence of sentence shall be executed at such place and time as the Court
whipping only.
may direct.
[Offences [2 (Act VI of 1804 as amended). Whoever commits any of the
puniahniiie with following offences may be punished with whipping in lien of any punish-
oYoTher punish" ment to which he may for such offence be liable under the Indian Penal
l£ftffic!SSj C0de> that is t0 sfly :-
Group A.
(1) theft, as defined in section 378 of the said Code ;
(2) theft in a building, tent or vessel, as defined in section 380 of
the said Code ;
(8) theft by a clerk or servant, as defined in section 381 of the
said Code ;
(4) theft after preparation for causing death or hurt, as defined
in section 382 of the said Code ;
Group B.
(5) extortion by threat, as denned in section 888 of the said
Code ;
(6) putting a person in fear of accusation in order to commit ex
tortion, as defined in section 389 of the said Code ;
Group C.
(7) dishonestly receiving stolen property, as defined in section 411
of the said Code ;
(8) dishonestly receiving property stolen in the commission of a
dacoity, as defined in section 412 of the said Code ;
Group D.
(9) lurking house-trespass, or house-breaking, as defined in sec
tions 448 and 445 of the said Code, in order to the committing
of any offence punishable with whipping under this section ;
(10) Lurking house-trespass by night, or house-breaking by night,
as defined in sections 414 and 446 of the said Code, in order
to the committing of any offence punishable with whipping
under this section.
[5 (Act VI of 1864 as amended). Any juvenile offender who com- k^0"^""^
mits any offence which is not by the Indian Penal Code punishable with with whipping
death, may, whether for a first or any other offence, be punished with p"^""^^ „""„;
whipping in lieu of any other punishment to which he may for such offence death ]
be liable under the said Code.
Explanation.—Tn this section the expression " juvenile offender "
means an offender who, in the opinion of the Court, is under sixteen years
of age, the decision of the Court on such matter being final and conclu
sive.]
391« (/) When the accused is sentenced t > whipping in Eieentionof
addition to imprisonment in a case wliich is i-ubject to appeal, the whipping, in
whipping shall not be inflicted until fifteen days from the date of prilonênt.'"1"
the sentence, or, if an appeal i.« made within that time, until the
.sentence is confirmed by the appellate Court ; but the whipping
shall be inflicted as scon as pr.ciicable after the expiry of the fif
teen days, t.r in case of an appeal, as soon as practicable after the
receipt of tLe order of the appellate Court confirming the sen
tence.
(2) Tha whipping shall be inflicted in Hie presence of the
officer in charge of the jail, unless tin Judge or Magistrate orders
it to be inflicted in his own presence.
(3) No accused person shall be sentenced to whipping in

addition to imprisonment when the term of imprisonment to which
he is sentenced, is less than three months.
In passing a sentence of whipping in addition to fix months' imprison- Whipping in «d-
ment, a Deputy Magistrate ordered that the prisoner should be brought before dition to impri-
him at the termination of the imprisonment, and that the sentence of whipping sul"uellt
should then be carried out. On the recommendation of the Sessions Judge
(who referred to sections 305 and 310, Act X of 1872 , the High Court can
celled the sentence of whipping as having become inoperative and incapable
of being carried out. Hur CJiundm Kulal v. Jafrr Ali, 20 W. R., 72(1873).
392. (1) In the case of a person of or over sixteen years Mode of iniiict-
of age, whipping shall be inflictfd with alight rattan not less than Snout'.'"'"11"
halfau inch in diameter, in such mode, and on such part of the
person, as the L cal Government directs; and, in the case of a per
son under sixt 'en years of age, it shall be inflicted in such mode,
and on such part of the person, and with such instrument, as the
Local Government directs.
(2) In no case shall such punishment exceed thirty stripes Limit of num-
bur of strips*.
28
434 Proceedings in Prosecutions, [C. XXVII 1.
Not to be exe 393. No sentence of whipping shall be executed by instal

cuted by instal'
raents—Exemp ments : and none /_ of the . following persons shall be punishable
tions.
with whipping (namely) : —
(a) females ;
(6) males sentenced to death, or to transportation, or to penal
servitude, or to imprisonment for more than five years ;
(c) males whom the Court considers to be more than forty-
five years of age.
Whipping not 394. (/) The punishment of whipping sh ill not be inflict -
u°ofcnderCtt?ot e^ unless a medical officer, if present, certifies, or, if there is not a
h"'i!thtate 01 medical officer present, unless it appears to the Magistrate or offi
cer present, that the offender is in a fit state of health to undergo
such punishment.
stay of execu- (2) If, during the execution of a sentence of whipping, a me-
t,on• dical officer certifies, or it appears to the Magistrate or officer
present, that the offender is not in a Gt state of health to undergo
the remainder of the sentence, the whipping shall be finally stopped .
Procedure if c95» {1) In any case in which, under section 391, a sen
punishment tence of whipping is, wholly or partially, prevented from being
cannot be in.
flicted under executed, the offender 9hall be kept in custody till the Court which
section 3Ut.
passed the sentence, can revise it ; and the said Court may,
at its discretion, either remit such sentence, or sentence the offen
der in lieu of whipping, or in lieu of so much of the sentence of
whipping as was not executed, to imprisonment for any term not
exceeding twelve months, which may be in addition to any other
punishment to which he may have been sentenced for the same
offence.
(2) Nothing in this section shall be deemed to authorise any
Court to inflict imprisonment for a term exceeding that to which
the accused is liable by law, or that which the said Court is com
petent to inflict.
Imprisonment A Court has no power, under section 395 of the Criminal Procedure Code,
Dinar—Court'not
ping—Court 1872, to revise its sentence of whipping by indicting a flue In cases where
not the
authorised to sentence of whipping cannot be carried out, all that the Court can do is
inflict fine in either to remit the whipping altogether, or to sentence the offender, in lieu of
lieu of whip such whipping, or of so much of the sentence of whipping as was not carried
ping.
out, to imprisonment, &c. The word " imprisonment " in section 395 of the
Code means a substantive sentence of imprisonment, and not imprisonment
for default in payment of a fine. Queen-Empress v. Sheodin, I. L. R., 11
AIL, 308 (1880).
Elocution of 396. (1) When sentence is passed under this Code on an
escaiiedeScon- escaped convict, such sentence, if of death, fine or whipping,
Ylct"' shall, subject to the provisions hereinbefore contained, take effect
immediately, and, if of imprisonment, penal servitude or transport
ation, shall take effect according to the following rules, that is to
say :—
(2) If the new sentence is severer in its kind than the sentence
which such convict was undergoing when he escaped, the new sen
tence shall take effect immediately.
(3) AVhen the new sentence is not severer in its kind than the
sentence the convict was undergoing when he escaped, the new
sentence shall take effect after he has suffered imprisonment, penal
servitude or transportation, as the case may be, for a further pe
riod equal to that which, at the time of his escape, remained unex
pired of his former sentence.
Explanation. — For the purposes of this section—■
(«) a sentence of transportation or penal servitude shall be deemed
severer than a sentence of imprisonment ;
(A) a sentence of imprisonment with solitary confinement shall be
deemed severer than a sentence of the same description of im
prisonment without solitary confinement ; and
(c) a sentence of rigorous imprisonment shall be deemed severer
than a sentence of simple imprisonment with or without soli
tary confinement.
397. When a person already undergoing a sentence of im- Sentence on of-
prisonment, penal servitude or transportation is sentenced to im- »ntonc«}rjory
prisonment, penal servitude or transportation, such imprisonment, another offencs.
penal servitude or transportation shall commence at the expiration
of the imprisonment, penal servitude or transportation to w hich
he has been previously sentenced :
Provided that if he is undergoing a sentence of imprison
ment, and the sentence on such subsequent conviction is one of
transportation, the Court may, in its discretion, direct that the
latter sentenca shall commenco immediately, or at the expiration
of the imprisonment to which he has been previously sentenced.
398. (/) Nothing in section 396 or section 397 shall be Savin* as to sec
held to excuse any person from any part of the punishment to sot"8 396 8113
which he is liable upon his former or subsequent conviction.
(2) When an award of imprisonment in default of payment
of a fine is annexed to substantive sentence of imprisonment, or
to a sentence of transportation or penal servitude for an offence
punishable with imprisonment, and the person undergoing the
sentence is after its execution to undergo a further substantive
sentence, or further substantive sentences, of imprisonment, trans-
I ortation or penal servitude, effect shall not be given to the award
of imprisonment in default of payment of the fine until the person
has undergone the further sentence or sentences.
436 Proceedings in Prosecutions. [C XXVI 1 1.
^SStSnSfcS! . 399m U > When any person under the age of fifteen years
Iters in reform* is sentenced by any Criminal Court t> imprisonment for any
offence, the Court may direct that such person instead of being
imprisoned in a criminal jail shall be confined in any reformatory
established- by the Local Government as a fit place fir confine
ment, in which there are means of suitable discipline and of train
ing in soma branch of useful industry or which is kept by a per
son willing to obey such rules as the L cal Government prescribes
with regard to the discipline and training of persons confined
therein.
(2) All persons confined under this secti in shall be subject
t> the rules so prescribed.
(3) This section shall not apply to any place in which the
Relonnatory Schools Act, 1807,* is for the time being in force.
[Power or _ [8 (Act VIII of 1897V (1) Whenever any youthful offender is
youthful0 often- sentenced to transportation or imprisonment, and is, in the judgment
(Ion. to be sent 0f t]ic fj.onrt by which he is sentenced, a proper person to be an inmate
toSchools.]
keformatoiv of.„„
a Reformatory* „ , , the Court
School, « i made
may, subject to any rules jlby
the Local Government, direct that, instead of undergoing his sentence,
lie shall be sent to such a school, and he there detained for a period
which shall be not less than three years or more than seven years.
(2) The powers so conferred on the Court by this section shall
he exercised only by («) the High Court, (A) a Court of Session, (f) a
District Magistrate, and ('/) any Mngistrate specially empowered by the
Local Government in this behalf, and may be exercised by such Courts
whether the case comes before them originally or on appeal.
(3) The Local Government may make rules for —
(</) defining what youthful offenders should be sent to Reform
atory Schools, having regard to the nature of their offences or
other considerations, and
(ft) regulating the periods for which youthful offenders may he sent
to such schools according to their ages or other considera
tions.]
[Power ol Mil' [10 (Act VIII of 1897). The officer in charge of a prison in
Frustrates to di which a youthful offender is confined, in execution of a sentence of im
rect tw.vs U]l
iter sixteen prisonment, may bring him, if lie has not then attained the age of fifteen
sentenced to years, before the District Magistrate within whose jurisdiction such
imprisonment
to be sent to prison is situate ; and such Magistrate may, if such youthful offender
Reformatory
Schools.] appears to be a proper person to be an inmate of a Reformatory School,
direct that, instead of undergoing the residue of his sentence, he shall bo
sent to a Reformatory School, and there detained for a period which
shall be subject to the same limitations as are prescribed by or under
section 8, with reference to the period of de'.ention thereby authorised.]
• No. Via ot I6K7.
Where a boy over fourteen, but otherwise of uncertain age, was ordered, Sentence—
upon conviction by a Magistrate, to be detained in a lteformatory School for Reformatory
two years : Held, that such sentence, having regard to the rule made by the 0 100 '
Governor-General in Council on the 14th March, 188'.!, under section 22 of Act
No. V of 1870, was illegal. The proper course for the Magistrate to have
adopted with reference to the above mentioned rules was to have ascertained
us near as might be the exact age of the offender and sentenced him to a
specified period of detention which should be that elapsing between his con
viction and the attainment by him of the age of eighteen years. Queeu-Em-
vrexs v. Naraiu, I. L. R., 15 All., 20s (1893)
A Magistrate acting under section 8 of the Reformatory Schools Act, V ^^""^'jL
of 187(5, is bound to ascertain the age of the prisoner, and, in accordance Miigintrate's
with that finding, to direct the confinement in a reformatory according t.) the diity to ascer-
rules made under section 22 of the Act. It is not sufficient for the Magistrate }£!" ™Z pr"°u'
merely to find that the prisoner is under a particular age. Under .section 8 of
the Act, evidence may be taken by the Magistrate as to the age of the pri
soner; and as the proceeding of the Magistrate involves the alteration of a
sentence after the exercise of judicial discretion, such proceeding is clearly a
judicial proceeding within the meaning of sections 4 and 435 of the Code of
Criminal Procedure, 1882. The High Court is, therefore, competent to exer
cise the revisional jurisdiction in such cases. Queen- Empren v. Uanaji,
I. L. U., 14 Bom., 381 (1889).
400. When a sentence has been fullv executed, the officer ">t«mof w»r-
.. 1 ,, ,, , ' .... rant on eiecw
executing it shall return the warrant to the Court from which it tion of ««-
issued, with an endorsement under his hand certifying the manner te,iC0'
in which the sentence has been executed.
CHAPTER XXIX.
Of Suspensions, Remissions and Commutations of

Sbnthncks.
401. (/) When any person has been sentenced to punish- ^,ororto
ment f<;r an offence, the Governor-General in Council or the sentence*.
Local Government may at any time, without conditions or upon
any conditions which the person sentenced accepts, suspend the
execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.
(2) Whenever an application is made to the Governor-
General in Council or the L >cal Government for the suspension or
remission of a sentence, the Governor-General in Council or the
Lucal Government, as the cse may be, may require the presiding
Judge of the Court before or by which the conviction was had or
contirmed to state his opinion as to whether the application should
be granted or refused, together with his reasons for such opinion.
(3) If any condition on which a sentence has been suspen
ded or remitted, is, in the opinion of the Governor-General in
Conncil or of the Local Government, as the case may be, not ful
filled, the Governor General in Council or the Local Government
438 Proceedings in Prosecutions. [Ch, XX IX.
may cancel the suspension or remission, and thereupon the person in

whose favour the sentence has been suspended or remitted, may,
if at large, he arrested by any police-officer without warrant and
remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or re
mitted under this sectiou, may be one to be fulfilled by the person
in whose favour the sentence is suspended or remitted, or one
independent of his will.
(5) Nothing herein contained shall be deemed to interfere
with the right of Her Majesty to grant pardons, reprieves, respites
or remissions of punishment.
(6) The Govornor General in Council and the Local Govern
ment may, by general rules or special orders, give directions as
to the suspension of sentences and the conditions on which petitions
should be presented and dealt with.
[Power to irrant [23 (Act V of 1871). The Governor-General in Council may
v\£t'^ntom°ed grant to any convict sentenced to be kept in penal servitude a license to
tudeT"' "°rVi' k° a* 'ar^c w'*mn British India or in such part thereof as in such
" ^ license is expressed, during such portion of his term of servitude, and
upon such conditions as to the Governor-General in Council seem fit.
The Governor-General in Council may at any time revoke or alter
such license.]
^Holder of [24 (Act V of 1871). So long as such license continues in force
allowed to ko and unrevoked, such convict shall not be liable to imprisonment or penal
at laiye ] servitude by reason of his sentence, but shall be allowed to go and
remain at large according to the terms of such license.]
enaion [25 (Act V of 1871). In case of the revocation of any such
fi'cenre revok*™ license as foresaid, any Secretary to the Government of India may, by
order in writing, signify to any Justice of the Peace or Magistrate
that such license has been revoked, and require him to issue a warrant
for the apprehension of the convict to whom such license was granted,
and such Justice or Magistrate shall issue his warrant accordingly.]
[Execution of [26 (Act V of 1871). Such warrant may be executed by any
warrant.] officer to whom it may be directed or delivered for that purpose in any
part of British India, and shall have the same force in any place with
in British India as if it had been originally issued or subsequently
endorsed by the Justice of the Peace, or Magistrate, or other authority
having jurisdiction in the place where the same is executed.]
[Apprehended [27 (Act V of 1871). The convict, when apprehended under
brought up for suc'' warrilI,';> shall be brought, as soon as conveniently may be, before
re-coinmit- the Justice of the Peace or Magistrate by whom it has been issued, or
ment.] before some other Justice or Magistrate of the same place, or before a
Justice or Magistrate having jurisdiction in the district in which the
convict is apprehended.
Such Justice or Magistrate shall thereupon make out his warrant«
under his hand and seal, for the re-commitment of the convict to the prison
from which he was released by virtue of the said license.
[28 (Act V of 1871.) Such convict shall be re-committed accord- [Re-commit-
ingly, and shall thereupon l>c liable to be kept in penal servitude for such ment'^
further term as, with the time during which he may have been impri
soned under the original sentence, and the time during which he may have
been at large under an unrevoked license, is equal to the term mentioned
in the original sentence.]
[29 (Act V of 1871). If a license be granted under section 23 [Penalty for
upon any condition specified therein, and the convict to whom the license jJJJJ,h „' ™i
is granted violates any such condition, or goes beyond the limit specified license ]
in the license, or knowing of the revocation of such license, neglects forth
with to surrender himself, or conceals himself, or endeavours to avoid
being apprehended, he shall be liable, upon conviction, to be sentenced
to penal servitude for a term not exceeding the full term of penal ser
vitude mentioned in the original sentence.]
402. The Governor-General in Council or the Local Go- ^[£r '".^{j*
vernment may, without the consent of the person sentenced, comment.
mute any one of the following sentences for any other mentioned
after it : —
death, transportation, penal servitude, rigorous imprisonment
for a term not exceeding that t j which he might have been sen
tenced, simple imprisonment for a like term, fine.
[54 (P. C). In every case in which sentence of death shall [commutation
have been passed, the Government of India or the Government of the jrf «j»tcme of
place within which the offender shall have been sentenced may, with
out the consent of the offender, commute the punishment for any other
punishment provided by this Code.]
[55 (P. C). In every case in which sentence of transportation [Commutation
for life shall have been passed, the Government of India or the Govern- t»twporuUou'
ment of the place within which the offender shall have been sentenced for life.]
may, without the consent of the offender, commute the punishment
for imprisonment of either description for a term not exceeding four
teen years.]
CHAPTER XXX.
Of previous Acquittals or Convictions.
403. (/) A person who has once been tried by a Court of Person once
competent jurisdiction for an offence and convicted or acquitted ^dttadnot to
of such offence, shall, while such conviction or acquittal remains £mtôn-0,o'e
in force, nut bo liable to be tried again for the same offence, nor
440 Proceedings in Prosecutions. [Ch. XXX.
on the same facts for any other offence for which a different
charge from the one made against him might have bean made
under section 23b", or for which he might have been convicted
under section 237.
(2) A person acquitted or convicted of any offence may be
afterwards tried for any distinct olb'nce for which a separate
charge might have been made against him on the former trial
under sec'ion 23"), sub-section (7).
(3) A person convicted of any offence constituted by any
act causing consequences which, together with such act, consti
tuted a different off;nce from that of which he was c mvicted, may
be afterwards tried for such last mentioned offence, if the conse
quences had not happened, or were not known to the Court to
have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence consti
tuted by any acts may, notwithstanding such acquittal or convic
tion, be subsequently charged with, and tried for, any other
offence constituted by the same acts which he may have c >mmit-
ted, if the Court by which he was first tried, was n >t competent
to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provisions of
section 26 ot the Gener .l Clauses Act,* 1 897, or of section 188 of
this Code.
Explanation.—The dismissal of a complaint, the stopping of pro
ceedings under section 2-19, the discharge of the accused or any entry
made upon a charge under section 273, is not an acquittal for the pur
poses of this section.
Illustrations.
(n) A is tried upon a charge of theft as a servant and acquitted.
He cannot afterwards, while the acquittal remains in force, be charged
with theft as a servant, or, upon the same facts, with theft simply, or
with criminal breach of trust.
(6) A is tried upon a charge of murder and acquitted. There is
no charge of robbery ; but it appears from the facts that A committed
robbery at the time when the murder was committed ; he may afterwards
be charged with, and tried for, robbery.
(c) A is tried for causing grievous hurt and convicted. The
person injured afterwards dies. A uuy be tried again for culpable homi
cide.
(r/) A is charged before the Court of Session and convicted of
the culpable homicide of B. A may not afterwards be tried on the same
facts for the murder of B.
• Mo. x of is»;.
S. 403.] Proceedings in Frosccutions. 441
(e) A is charged by a Magistrate of the first class with, and con

victed by him of, voluntarily causing hurt to H. A may not afterwards
be tried for voluntarily causing grievous hurt to B on the same facts,
unless the case comes within paragraph 3 of the section.
(/) A is charged by a Magistrate of the second class with, and
convicted by him of, theft of property from the person of R. A may be
subsequently charged with, and tried for, robbery on the same facts.
(#) A, B and Care charged by a Magistrate of the first class with,
and convicted by him of, robbing D. A, B and C may afterwards be
charged with, and tried for, dacoity on the same facts.
[20 (Act X of 1897). Where an act or omission constitutes an [Provision u to
offence under two or more enactments, then the offender shall be liable to »b?e^derm'h"
be
but prosecuted
shall not beand punished
liable under either
to be punished or the
twice for any same
of those enactments,
offence.] ^.{JJ^jJJJj
u"" "K" s'
Where an accused person is charged with and tried for various offences Re-trial, effect
arising out of a single act or series of acts, it being doubtful which of those fn^^rawT**"
offences the act or acts constitute, and where he hag been acquitted by the where one act
verdict of a jury of some of such offences and convicted of others and appeals ^veral'offences
against such conviction, and where the appellate Court reverses the verdict of and there has '
the jury, and orders a re-trial without any express limitation as to the charges be^n an "cquit-
upon which such re-trial is to be held, such re-trial must be taken to be upon all charKea'um'i a
the charges as originally framed, and the acquittal by the jury on the previous conviction on
trial upon some of such charges is no bar to the accused being tried on thein an appeaUrom
again, as, having regard to the provisions of section 423 of the Code of Cri- such convic-
minal Procedure, 1882, the provisions of section 403 in that respect cannot tion-
apply to such cases. Krishiui Dlian Mutulal v. Queen-Empress, I. L. It., 22
Cal.,"377 (18U4).
A prisoner, charged before a Magistrate at Benares with offences punish- do"d%ffect of—
able under sections 471, 472 and 474 of the Penal Code, made a confession Subsequent trial
to the Magistrate in respect of those offences. He was then sent in custody of accomplice
to Calcutta, and was there, together with other persons, charged before a o°Henêctea
Magistrate with offences punishable under sections 467, 473, and 475. The
conduct to which these charges related was closely connected and mixed up
with that to which the charges first mentioned had reference. Under section
337 of the Criminal Procedure Code, 1882, the Magistrate at Calcutta tendered
a pardon to the prisoner upon the conditions specified in that section, and
the prisoner accepted the pardon, and gave evidence for the prosecution. The
Magistrate held that this evidence was not sufficiently corroborated, and
accordingly discharged all the accused, but the pardon was not withdrawn,
and there was nothing to show that the Magistrate was dissatisfied with the
prisoner's statements, or considered that lie had not complied with the con
ditions on which the pardon was tendered. Subsequently, the prisoner was,
committed by the Magistrate of Benares for trial before the Court of Session
upon the charges under sections 471, 472, and 474 of the Penal Code. He
pleaded not guilty, but did not in terms plead the pardon as a bar to the
trial, though he made some reference to the subject ; and the Sessions Judge
having made a brief enquiry as to the proceedings at Calcutta, came to tho
conclusion that thero was no sufficient proof of any conditional pardon, and
convicted and sentenced the accused. Held that, by the terms of the con
ditional pardon granted to the accused by the Calcutta Magistrate, the con
ditions of which were satisfied as was shown by its never having been with
drawn, the accused was protected from trial at Benares in respect of the
offences under sections 471, 472, and 474, and was not liable to be proceeded
442 Proceedings in Prosecutions. [Ch. XXX.
against in respect of them, and that the trial ar.d conviction were therefore
illegal. Although section 337 of the Code does not in terms cover a case
where a Magistrate holding a preliminary enquiry for committal against
several persons, tenders- a conditional pardon to one of them, examines him
as a witness, and subsequently discharges all the accused for want of a prima
facie case against them, the words " every person accepting a tender under
this section shall be examined as a witness in the case " mean that for all
purposes (subject to failure to satisfy the conditions of the pardon as provided
for by section 339) such a person ceases to be triable for the offence or offen
ces under enquiry or (with reference to section 339) for " any other offence
of which he appears to have been guilty in connection with the same matter,"
while making " a full and true disclosure of the whole of the circmnstances
within his knowledge relative to the offences " directly under enquiry. The
words last quoted refer to the importance, when a pardon is tendered, of
encouraging the approver to give the fullest details, so that points may be
found in his evidence which may be capable of corroboration. The question
of how far the pardon protects him, and what portion of it should not pro
tect him, ought not to be treated in a narrow spirit. Queen- Emjiress v. Ganga
Ckaran, I. L. R , 11 All., 79 (1888).
cfcSws" arising E' bein8 charged with theft and mischief in respect of certain branches
out of same cut from a tree claimed by the complainant, was tried by a subordinate
Ac uiuIi'l—Fiir- ^ttg'8tla'e on tne charge of mischief, and acquitted on the ground that, as
thcrcnuuiry—* against the complainant, E had title to the tree. On the application of the
Bo-trial. complainant, the District Magistrate directed further enquiry into the case
under section 437 of the Code of Criminal Procedure, 1882, and on a reference
to the Court of Sessions, the Sessions Judge held that, as no enquiry into the
charge of theft had been held, the order was illegal. Held, that the District
Magistrate had no power to pass such an order under section 437, and that a
trial on the charge of theft was barred by virtue of section 403 of the Code of
Criminal Procedure. Queen-Empress v. Erramreddi, I. L. R., 8 Mad., 296
(1885).
Acquittal—Re- The jurisdiction conferred by the Code of Criminal Procedure, 1882, does
trial—Jurisclic- not affect any special jurisdiction or pow er conferred by any law in force at
Uon Abkan ^ tjme wnen tne q0(]c came ;nt0 force. All offences against the Abkari law
(Bom. Act V of 1878) being cognizable by a Magistrate of the second class
(section 3, clause 5, and section 56) , a person tried for any such offence by any
such Magistrate, and acquitted, is not liable to be tried again for the same
offence (section 403), unless the acquittal had been set aside by the High Court
on appeal by the Government. Queen-Empress v. Gustadji Barjoji, I. L.
R., 10 Bom., 181 (1885).
Previous ac- Upon a charge of dacoity, the Magistrate, having split up the charge,
quittal. convicted the accused of rioting, using criminal force, and misappropriating
the property of a deceased person. On appeal the Sessions Court reversed the
conviction, holding that the offence, if any, was dacoity, but that the facts
alleged being incredible, there was no need to order a committal. The com
plainant thereupon lodged a fresh complaint of dacoity, based on the same
facts, before another Magistrate. Held, that the judgment of the Sessions
Court was no bar to further proceedings. Viran Rutti v. Chiyamu, 1. L. R.,
7 Mad., 557 (1884).
Acquittal—Re- When an offence is tried by a Court without jurisdiction, the proceedings
'n fntheer' ftre voitl umler section 530 of the Code of Criminal Procedure, 1882, and the
H$li Court? offender, if acquitted, is liable to be re-tried under section 403. It is, there
fore, not necessary for the High Court to upset the acquittal before the
re-trial can bo had. Queen-Empress v. Husein Guibu, I. L. R., 8 Bom., 307
(1884).
S. 403.] Proceedings in Prosecutions . 443
When ii Sessions Judge on appeal annuls llie conviction of a Magistrate Conviction
for want of jurisdiction, and omits to order a re-trial at tlic time under section flXequUtiu—' '
284 of the Criminal Procedure Code, 1872, he is not precluded, by virtue of su'iis^cuicnt
section 4(54, from passing such an order subsequently. The order annulling orê[1f.°i0™'îal
the conviction in such a case docs not amount to an acquittal. Where sane- ^-'0^ "cute "for
tion is given for a prosecution for perjury, and the case tried by an incom- perjury un-
petent Court, and the conviction quashed on appeal, a competent Court may Jjl^rtfvc 'trial,
re-try the prisoner upon the subsisting sanction without any order of the
appellate Court by whom the conviction is quashed. The evidence of a
witness given in a proceeding pronounced to be coram nonjwlice cannot be
used under section 33 of the Evidence Act, if the witness is dead, on a re-trial
before a competent Court. R charge 1 A with breach of trust, and S gave
evidence in support of the charge. .4 being acquitted, R was charged for
making a false charge, and S for perjury. Held, (1) that the depositions
given by witnesses in the first case could be used against R in the second
case, but not against S under section 33, Evidence Act. (2) That the word
" questions " in section 33 does not mean " all the questions," and that,
though additional issues were involved in the second trial, yet the evi
dence as to the issues common to both trials was properly admitted at the
second trial against R. In re Ramireddi, I. L. B., 3 Mad , 48 (1881).
A person made a complaint to the police that the accused had enticed Dismissal of
away his wife (a non-cognizable offence) and committed theft (a cognizable ro"11''„j"i0"mB'0"
offence). The police enquired into the latter offence only : and, tinding no pj^nt? >U
primA facie case made out, reported to that effect to a Magistrate, who directed
that that offence be expunged from the list of reported offences. Held that,
under the circumstances, there had been no dismissal of the complaint in
respect of the former offence ; and that there was no bar to the complaint
into that offence being taken up and proceeded with. The Government of
Bombay v. Shidaixt, I. L B., 5 Bom., 405 (1881).
A Magistrate tried and acquitted a person accused of an offence without Acquittal—Dis-
preparing in writing a charge against him. Such omission did not occasion ^'âf
any failure of justice. Held, with reference to section 216 of the Code of of "prosecution.
Criminal Procedure, 1872, Explanation I, that such omission did not invalidate
the order of acquittal of such person, and render such order equivalent to an
order of discharge ; and such order was a bar to the revival of the prosecution
of such person for the same offence. Empress of India v. Gurdu, I. L B.,
3 AH., 129 (1880).
A prisoner originally charged with an offence under one section (302) and Irregularity-
acquitted of that charge was committed, the day following that on which she t'mtlicr clinrge
was acquitted, for trial under another section (307) , without any witnesses _Accu>ed-
being examined on the charge under section 307, and without having any
opportunity of cross-examining the witnesses on the first charge with respect
to the second charge. Held, that the irregularity was one which was not
covered by section 283 of the Code of Criminal Procedure, 1872, and that the
prisoner had been prejudiced thereby in her defence. The trial under section
307 was accordingly quashed, and a new trial ordered. The Queen v. J/us-
samut Itiearya, 22 W. B., 14 (1874).
A person tried and acquitted on a charge of using criminal force under AidrrfoU «<-</«i<.
section 352 (which includes the offence of battery) cannot be tried, in respect
of the same criminal matter, on a charge of hurt. Kaplan v. G. M. Smith,
10 W. K., 3 (1871).
Where a prisoner released by the Court of Session, on the ground that the Previous no-
proceedings had in his case were illegal and irregular, there is no bar under quittal.
section 55 of the Code of Criminal Procedure, 1861, to his being subsequently
tried and convicted for the same offence. The Queen v. Wahtd Ali, 13 VV. B.,
42 (1870).
444 Of Appeal, Reference, etc. [Ch. XXXI.
Hen ol amre- The prisoner was charged with having forge ! potfahs A and B bearing
' the same date and adduced in evidence by bim iu the suine suit. No mention
of any charge as to pottali li was made in the order of commitment; and the
prisoner having been acquitted on an indictment for forging pottah 'A, it was
held by the majority of the Court (MarKBY, J., dissentini/) that the plea of
autrefois acquit was inadmissible on a subsequent trial of the prisoner for
forging pottah B. The Queen v. Dicarlea Nath lJutt, 7 W. B., 15 (1807).
fraudu'ently'0' Where a prisoner was convicted and sentenced under section 50 of Act
secretins a XVII of 1850, upon the charge of fraudulently secreting a post-letter, and on
KauduTniT aPPea' 8UCh conviction and sentence were continued : Hrld, that he could not
making away subsequently be convicted under the same section of having fraudulently
with same made away with the same letter upon the same occasion, both acts being con-
' ler' nected and substantially a part of one criminal transaction. Tlte tauten v.
Dalapati Rau, 1 Mad. H. C, 83 (1802).
PART VII.
OF APPEAL, REFERENCE AND REVISION.
CHAPTER XXXI.
Of Appeals.
Unieis other- 404. No appeal shall lie from any judgment or order of a
no nppeal to lie. Criminal Court except as provided for by this Code or by any
other law for the time being in force.
[Limitation for [The following are the periods for presentation of appeals ("under
{S.f"g ""' Act XV of 1877): -
Act 150.—From a sentence of death passed by a Sessions Judge
seven days from the date of the sentence.
Act 154.—To any Court other than a High Court—thirty days from
• the date of the sentence or order appealed against.
Act 155.—To a High Court—sixty days from the date of the sentence
or order appealed against.
Act 157.—From a judgment of acquittal—six months from the date
of the judgment appealed against.]
[DismUsai of [4 (Act XV of 1877). Subject to the provisions contained in
tuted. 4c" 'after sections 5 to 25 (inclusive), every suit instituted, appeal presented, and
period of limita- application made after the period of limitation prescribed therefor by
tion'-' the second schedule hereto annexed, shall be dismissed, although limit
ation has not been set up as a defence.
Explanation.—A suit is instituted in ordinary cases when the plaint
is presented to the proper officer ; in the case of a pauper when his appli
cation for leave to sue as a pauper is filed ; and in the case of a claim
against a company which is being wound up by the Court, when the
claimant first sends in his claim to the official liquidator.
S 404.] Of Appeal, Reference, etc. 445
Illustrations,
(n) A suit is instituted after the prescribed period of limitation.

Limitation is not set up as a defence, and judgment is given for the
plaintiff. The defendant appeals. The appellate Court must dismiss the
suit.
(A) An appeal presented after the prescribed period is admitted
and registered. The appeal shall, nevertheless, be dismissed.]
[5 (Act XV of 1877). If the period of limitation prescribed for any [Proviso where
suit, appeal, or application, expires on a day when the Court is closed, the £hon perfod
suit, appeal, or application may be instituted, presented, or made on the pires.]
day that the Court re-opens.
Any appeal or application for a review of judgment may be admit- ^Je^jf„"j^p.
ted after the period of limitation prescribed therefor, when the appellant pficition forre-
or applicant satisfies the Court that he had sufficient cause for not present- view^
ing the appsal or making the application within such period.]
[5 A — (Act XV of 1877). Whenever it is shown to the satis- ^taiu*"0" '°[
faction of the Court that an appeal or an application for a review of orWpli "wions"
judgment was presented after the expiration of the period of limitation jji^gn*]0'
prescribed for such appeal or application owing to the appellant or appli
cant having been misled by any order, or practice, or judgment of the
High Court of the Presidency, Province, or District, such appeal or ap
plication, if otherwise in accordance with law, shall, for all purposes, be
deemed by all Courts to have been presented within the period of limit
ation prescribed therefor.]
[12 (Act XV of 1877). In computing the period of limitation J^™'™'™,,1-',,
prescribed for any suit, appeal, or application, the day from which such right to sue ac-
period is to be reckoned shall be excluded. crued.]
In computing the period of limitation prescribed for an appeal, an [Exclusion in
application for leave to appeal as a pauper, and an application for a review ,m,i ecrtnui »i>-
of judgment, the day on which the judgment complained of was pronounc- pUoattoni.]
ed, and the time requisite for obtaining a copy of the decree, sentence,
or order appealed against, or sought to b3 reviewed, shall be excluded.
Where a decree is appealed against or sought to be reviewed, the
time requisite for obtaining a copy of the judgment on which it is founded
shall also be excluded.
In computing the period of limitation prescribed for an application
to set aside an award, the time requisite for obtaining a copy of the
award shall be excluded.]
There being no appeal from a conviction under the Cuttle Trespass Act, Cattle Trespass
the High Court refuse! to revise the proceedings of the lower Court under sec- Act-No appeal,
tions 435, 438 of the Criminal Procedure Code, 1882, since there being evidence
to support the conviction to adopt such a course would be to substantially allow
an appeal. Imprisonment cannot be inflicted in default of payment of the
compensation awardo I under the Cattle Trespass Act. Qaeen-Empreta v.
Lakuhmi Nat/akan, I. L. R., 19 Mad., 233 (1896).
446 Of Appeal, Reference, etc. [Ch. XXXI,
Appeal by pri In computing the period of limitation prescribed for an appeal from a
soner—Limita sentence of a Criminal Court by art. 154 of schedule II of the Indian Limita
tion— Time tion Act, 1877, the time taken in forwarding an application by a prisoner for a
necessary tc
obtain copy copy of the judgment and in transmitting the same from the Court to the jail
of judgment. must ho excluded. In the case of such appeals, presentation of the petition
of appeal to the officer in charge of the jail is, for the purpose of the Limita
tion Act, equivalent to presentation to the Court. Queen- Empress v. Lingaya,
I. L. R., 9 Mad., 258 (188G).
Criminal appeal CourtA by
petition of appeal in a criminal case may be presented to the appellate
any person authorised by the appellant to present it. In re Subba
—Presentation
of. Aitala,'l.~L. Ii., 1 Mad., 304 (1877).
Appeal from 405. Any person whose application under section 89 for the
fiMlcaTiOTi'f"? delivery of property or the proceeds of the sale thereof has been
atttcmrfpro^ rejec^'d by any Court, may appeal to the Court to which appeals
perty. ordinarily lie from the sentences of the former Court.
Appeal from 406* Any person ordered by a Magistrate other than the
S^rilyT?"* District Magistrate or a Presidency Magistrate, to give security
good behaviour. for gO0j behaviour under section 118, may appeal to the District
Magistrate.
Appeal—Seen i i- appeal lies to the High Court from an order passed by District
ty for good be- Magistrate under the provisions of section 123 of the Criminal Procedure
haviour. Code, 1882, and on reference by the Magistrate confirmed by the Sessions
Judge under the same section, requiring a person to be detained in prison,
until he should provide security for his good behaviour. C'hand Khan v.
The Empress, I. L. B., 9 Cal., 878 (1883).
Appeal from i 407. (J) Any person convicted on a trial held by any
sentence of Magistrate of the second or third class, or any person sentenced
Magistrate of
the. second or under section 34ti by a Subdivisional Magistrate of the second
third class. class, may appeal to the District Magistrate.
Trn shT (2) The District Magistrate may direct that any appeal
appi aN tois|lrst under this section, or any class of such appeals, shall be heard by
tratc. any Magistrate of the first class subordinate to him and empowered
by the Local Government to hear such appeals, and thereupon
such appeal or class of appeals may be presented to such subordin
ate Magistrate, or, if already presented to the District Magistrate,
may be transferred to such subordinate Magistrate. The District
Magistrate may withdraw from such Magistrate any appeal or class
of appeals so presented or transferred.
Application for The District Forest Officer applied by letter to the District Magistrate to
sanction to take sucli action as he deemed fit against one Subbaraya Pillai, who, for rea
prosecute—
Offence commit sons stated by the District Forest Officer, was suspected of havingabetted the
ted before offence of giving false evidence in the course of proceedings instituted on be
second elnss half of the Forest Department in the Court of a second class Magistrate. The
Magistrate—
Court to which District Magistrate had previously directed that all appeals from the second
appeals ordin class Magistrate should be heard by the Deputy Magistrate, but he passed au
arily lie.
order himself, whereby he (1) sanctioned the prosecution of Subbaraya Pillai,
(2) diiected that it should take place iu the Court of the Head Assistant Magis
trate, llehl, (1) that the District Magistrate had uo jurisdiction to sanction
Ss. 405-410] Of Appeal, Reference, etc. 447
tlie prosecution, for the reason that lie was not the ordinary appellate authority ;
(2) that the second part of his order was irregular for the reasons that it was
not authorised by Criminal Procedure Code, 1882, section l'J5, and he had no
jurisdiction to act under section 476, since the alleged offence was not brought
to his notice in the course of judicial proceeding. Queen-Empress v. Subburaya
PilUii, I. L. K., 18 Mad., 487 (1895).
In a petition of appeal from a conviction, the appellant falsely stated that Verification ot
the convicting Magistrate declined to summon his witnesses. The Magistrate JS!^" of
to whom the appeal was preferred called upon the appellant to verify the ' '
nllarvatinnu
allegations in
in il.a nation of appeal1 on solemn
the petition 1„. _U» . ■ and1 ,he did
affirmation, ... so : J— ,.
Held,
that the appellant had not committed an offence under section 181 or 182 of
the Penal Code. Queen-Empress v. Subbuyya, I. L. K., 12 Mad., 451 (1889).
An appeal lies under section 407 of the Code of Criminal Procedure, 1882, Bene'1 of
from a conviction by a Bench of Magistrates invested with second or third "^"s^nd
class powers. Queen-Empress v. Naruyanasami, I. L. K., 9 Mad., 3ti (1885). clans powera—
Conviction—
408. Any person convicted on a trial held by an Assistant Appeni from
Sessions Judge, a District Magistrate or other Magistrate of the Eg^***
first class, or any J ,Lpersun sentenced
i . undernsectione 3-iy
o by a Magis- «pn» JudKeor
Mani«lrate of
trate of the first class, may appeal to the Lourt ot session : the first class.
(a) any European British subject so convicted may, at his
option, appeal either to the High Court or the Court of
Session ;
(6) when in any case an Assistant Sessions Judge or a Ma
gistrate specially empowered under section 30 passes any
sentence of imprisonment for a term exceeding four
years, or any sentence of transportation, the appeal shall
lie to the High Court ;
(c) when any person is convicted by a Magistrate of an

offence under section 124A of the Indinn Penal Code,
the appeal shall lie to the High Court.
A person, not being a European British subject, who is tried before a Riirht ot appeal
District Magistrate jointly with a European British subject, cannot claim, Court b?»r r-
under section 4b! of the Code of Criminal Procedure, 1882, the right of appeal son other than
to the High Court which is exclusively reserved to such European British ! Europea"
subject. In re Job Solomon, I. L. R., 14 Bom., 160 (1889). B"tlsh subject-
409. An appeal to the Court of Session or Sessions Judge AgP«»tato

shall be heard by the Sessions Judge or by an Additional Sessions how heard.
Judge.
410. Any person convicted on a trial held by a Sessions t&lu^J™™

Judge, or an Additional Sessions Judge, may appeal to the High Court oI Sea-
Court.
448 Of Appeal, Reference, etc. [Ch. XXXI
Appeal from^ 411. Any person convicted on a trial hold by a Presidency

SiencyMagia-" Magistrate may appeal to the High Tourt, if the Magistrate has
trato- sentenced him to imprisonment for a term exceeding six months,
or to fine exceeding two hundred rupees.
Appoul from a Section 411 of the Code nf Criminal Procedure, 1882, does not, allow an
Presidc?"ybMa- appeal >n the case of a conviction by a Presidency Magistrate where the sen-
ni»triito— tence inflicted is six months' rigorous imprisonment and a line of lis. 125, or
Appeal—Prac- jn riefuu]t a further period of three months' rigorous imprisonment. Queen-
t,te Empress v. Hari Savba, I. L. R., 20 Bom., 145 (1895).
Appeal from No appeal lies from a sentence of six months' rigorous imprisonment and
•enteuceol .**" a tine of lis. 200, or a further period of three months' simple imprisonment,
liidency ls" passed bv a Presidency Magistrate. Schein v. The Queen-Empress, I. L. R.,
trato. 10 Cal., 799 (1889).
Introduction in- The provisions of section 74 of the Bengal Excise Act as to additional
to Calcutta of punishment, where there has been a " previous conviction for a like offence,"
ipiritiioii^lj- contemplate merely the case of the offender having been already convicted
tured'oisewl'iero °f an offence punishable, with a tine of lis. 200 or upwards, and beirg again
—Limits fixed convicted of another offence punishable with the same punishment, it is not
Aîdh^'nulpim- nece99arv 'hat. he should have been previously convicted of the same offence,
ishment -Alter- The accused were sentenced by the Presidency Magistrate, under sections 58
native sentence aI),l 74 0f the Bengal Excise Act, to a line of Its .'00 each, in default to three
meiit.Prl,°n months' imprisonment, and in addition to six months' imprisonment, which
was the maximum term that could be awarded under section 74. Held, that
the sentence of imprisonment was not in excess of the powers given to the
Magistrate by section 12 of the Presidency Magistrates Act, the imposition
of the additional sentence of imprisonment not affecting the Magistrate's
powers as rcgarde 1 the original sentence under section 58. No limits with
regard to any distilleries in Calcutta having been fixed under section 9 of the
Act within which spirituous liquor manufactured otherwise than in that parti
cular distillery shall be introduced or sold without a special pass, and the fix
ing of such limits being necessary to a conviction of an offence under section
58, the convictions in this case were set aside. Ram Chumler Shaio v. The
Empress, I. L. R., G Cal., 575 (1881).
Presidency Ma' The words " to imprisonment for a term exceeding six months, or to fine
tristrute's Act exceeding 200 rupees," in section 167 of the Presidency Magistrates Act (IV of
(IV of 1877) - 1877), are confine 1 in their meaning to substantive sentences, and cannot be
Execution-cre extended to include an award of imprisonment in default of payment of lines
ditor.
the operation of which is contingent only on the fine not being paid. Where
the accused persons, execution-creditors, in company with an authorised bai
liff, broke open complainant's dooi before sunrise with intent to distrain his
property, for w hich they were convicted on a charge of lurking house-trespass
by night or house-breaking by night: Held, that as they were not guilty of
the offence of criminal trespass, there being no finding of any such intent as
is required to constitute that offence, and that as criminal trespass is an essen
tial ingredient of either of the offences with which they were charged, the con
viction must be quashed. In re Jolharam Davay, I. L. R , 2 Mad., 30 (1878).
No appeal in 412. Notwithstanding anything hereinbefore contained,

certain cases where an accused person has pleaded guilty and has been convicted
when accused
pleads guilty. by a Court of Session or any Presidency Magistrate or Magistrate
of the first class on such plea, there shall be no appeal except as to
the extent or legality of the sentence.
Ss. 41 1—41 5.] Of Appeal, Reference, etc. 44$
Where a person has, on his own pica, been convicted on a trial held by a PIe» of guiltj—
Presidency Magistrate, an appeal to the High Court, on the ground that the gc^tone'e-
conviction was illegal, and therefore also the sentence, does not lie, according Appeal,
to the provisions of section 167 of the Presidency Magistrates' Act (No. IV
of 1877), albeit that the Magistrate lias sentenced the person to imprison
ment for a term exceeding six months, or to a line exceeding two hundred
rupees. Empress v. Jafar M. Talab, I. L. B., 5 Bom., 85 (1880).
413* Notwithstanding anything hereinbefore contained, No nppeni ii
there shall be no appeal by a convicted person in cases in which peMy case*'
a Court of Session or the District Magistrate or other Magistrate
of the first class passes a sentence of imprisonment not exceeding
one m<>ntb only, or of fine not exceeding fifty rupees only, or ot
whipping only
Ejcfilanation.— There is no appeal from a sentence of impri
sonment pissed by such Court or Magistrate in default of payment
fo fine when no substantive sentence of imprisonment has als ■>
been passed.
An order passed by a Magistrate under section Ml of the Court-Fees Act, Appailable sen-
directing an accused person to pay to the complainant the court-fee paid on tonee—Costa of
the petition of complaint, is no part of the sentence so as to make it a sen- crnmm/l' Court,
tencc of fine within the terms of section 413 of tlie Code of Criminal Pro- order on aceua-
cedure, 1882, ami an order therefore sentencing an accused person to 14 days' t0
rigorous imprisonment and to pay the costs is not appealable. Madan ilamlul
v. Haran Ghose, I. L R., 20 Oil., 087 (18'J3).
Where several persons were tried together and convicted, under section Appeal where
147 of the Penal Code, of rioting, and two of them were sentenced to pay oueof the ac-
each a fine of Rs. 50, or in default of payment to undergo rigorous impri- tenceVtoTropri-
sonment for a month, and the others were sentence 1 to a severer punishment, lonment eiceed-
the Sessions Judge entertained an appeal by all the prisoners, l>eing of opinion °"« month,
that the test under section 411 of the Code of Criminal Procedure, 1861, as to
whether a case is appealable, is the maximum sentence passed in it. The
High Court annulled the order of the Sessions Judge passed with reference to
those of the accused who had been only fined Rs. 50, and restored the original
sentences passed upon them. lie;/, v. Kalubhai Meyhabhai et al.t 7 Bom.,
H. C. (Crotrn Cases), 35 (1870).
Held, that a Sessions Judge has no power to mitigate a sentence passed Mitigation of
upon a prisoner who has not appealed to him. Her/, v. Muliya Nana et a/., sentence—
5 Bom. H. O, 24 (1868). APP»b
415 . Notwithstanding anything hereinbefore contained, No appeal from
there shall be no appeal by a convicted person in any case tried m«ry'coavte-
summarily in which a Magistrate empowered to act under section ,iou'1"
260 passes a sentence of imprisonment not exceeding three months
only, or of fine not exceeding two hundred rupees only, or of
whipping only.
415. An appeal may be brought against any sentence referred Proiiso to see-
to in section 413 or section 114 by which any two or more of the in." 413 '",d
punishments therein mentioned are combined, but no sentence
which would not otherwise be liable to appeal, shall be appealable
merely on the gionnd that the person convicted is ordered to find
security to keep the peace.
29
45© Of Appeal, Reference, etc. [Ch. XXXI.
lixplanation.—A sentence of imprisonment in default of pay

ment of fine is not a sentence by which two or more punishments
are combined within the meaning of this section.
fonc«on w . *16- Nothing in sections 413 and 414 applies to appeals
pcau British from sentences passed under Chapter XXXIII on European Bri-
i,u joc s. tish subjects.
tothettSff*1 A person, not being a European British subject, wlio is tried" before a
Court by n per- District Magistrate jointly with a European British subject, cannot claim,
son other than under section 452 of the Code of Criminal Procedure, 1882, the right of appeal
iriUsh'subiwt t0 l'le ^'S'1 Court which is exclusively reserved to such European British sub
ject. In re Job Solomon, I. L. It., 14 Bom., 160 (188i»).
hfffof Govern- 417. The Local Government may direct the Public Pro-
JJquutai0"0 °f !ecut°r to present an appeal to the High Court from an original
or appellate order of .acquittal passed by any Court other than a
High Court,
L imitation.] [Art. 157, Act XV of 1877.—Appeal from a judgment of acquittal
—six months from the date of judgment appealed against.]
Appeal by Local Under the Code of Criminal Procedure, 1882, the Local Government have
frora^Xment tl,e 8ame right of appeal against an acquittal as a person convicted has of ap-
of acquittal. pealing against his conviction and sentence, and there is no distinction be
tween the mode of procedure and the principles upon which both classes
of appeals are to be decided The (Jutcn-Empress v. Bibhili Bhutan Bit, 1.
L. It., 17 Cal., 485 (1800).
Petition to An appeal against an acquittal by way of revision is not contemplated by
revise a juuit- the Code, 1882, and it should, on public grounds, be discouraged. 7 lian lavan
gent of acqu.t- y , 'L. R 14 ^ m (1890),
High Court's Though the High Court has the power, under section 43!) of the Code of
«on-A°qi"ai" Criminal Procedure, 1882, to revise an order of acquittal, yet ordinarily it
—Order of ac- does not interfere with such an order in the exercise of its revisional jurisdic-
quittal. tion, because an appeal can always be made by the Local Government under
section 417 of the Code. Heera Bai v. Framji Bhikaji, I. L. K., 15 Bom.,
34'J (18lJ0).
Appeal by Local Per Edge, C. J. - Although, as a general rule, it would be most unsafe to
froml'idgracnt convict an accused person on the uncorroborated evidence of an accomplice,
of acquittal. such evidence must, like that of any other witness, be considered and weighed
by the Judge, who, in doing so, should not overlook the position in which the
accomplice at the time of giving his evidence may stand, and the motives
which he may have for stating what is false. If the Judge, after making due
allowance for these considerations and the probabilities of the story, comes to
the conclusion that the evidence of the accomplice, although uncorrobora
ted, is true, and the evidence, if believed, establishes the guilt of the prisoner,
it is his duty to convict. Per BuormiRST, J., contra.—Observations as to the
necessity of corroboration in material particulars, of the evidence of accom
plice witnesses. Per Edge, C. J., and Si RAIGHT, J.—Every case as it arises must
be decided on its own facts, and not on supposed analogies to other cases.
Queen-Eiapres»\. Gayarfin, followed by BnomiURST, J., as to the primiples
applicable to tin- determination of appeals preferred by the Local Government
from judgments of acquittal. Per Edge, C J.—In capital cases, where the
Local Government appeals, under section 417 of the Criminal Procedure Code,
1882, from an order of acquittal, it is, generally speaking, undesirable that the
prisoner's fate should be discussed while he remains at large ; and the
Ss. 416-417.] Of Appeal, Reference, etc.
Government should, in such cases, apply for the arrest of the accused under
section 427 of the Code. Queen EmprenH v. Gobardhan, I. L. R., 9 AH.,
528 (1887).
The High Court has power, under section 439 of the Criminal Procedure Order of acquit-
Code, 1882, to revise an order of acquittal, though not to convert a finding of {fJ~{J|j,,lvnr ^
acquittal into one of conviction. In reference to orders of acquittal passed o( revision—Or-
by a Court of Session in appeal, the High Court may, under section 439, der by Hinli
reverse such order and direct a re trial of the appeal, the proper tribunal to Sfelf1 '"îtui1
conduct which is the Sessions Court of appeal, or such other Court of equal 0n appeal,
jurisdiction as the High Court may entrust, under section 526 of the Code,
with the trial of the appeal. Queen-Empress v. Bahrant, I. L. Tt., 9 AIL,
134(1886).
Held by the Full Bench that, when a Magistrate lias discharged an ac- « Furtheren-
cused person under section 253 of the Criminal Procedure Code, 1882, the qnir.v "- pr»<"
High Court or Court of Sessions, under section 437, has jurisdiction to direct VhoV ?«use? '°
further enquiry on the same materials, and a District Magistrate may, under
like circumstances, himself hold further enquiry or direct further enquiry by
a subordinate Magistrate. In exercising the powers conferred by section 437,
Sessions Judges and Magistrates should, in the first place, always allow the
person who has been discharged an opportunity of showing cause why there
should not be further enquiry before an order to that effect is made, and. next,
they should use them sparingly and with great caution and circumspection,
especially in cases where the questions involved are mere matters of fact.
As to the mode in which their discretion should be regulated under such cir
cumstances, the remarks of Straight and Tyrreu,, JJ., in Queen-Empress v.
(layadin, in reference to appeals from acquittals, are applicable. Queen- Em
press v. Chotu, I. L. R., 9*AI1., (F. B.) 52 (1880).
Under the provisions of the Code of Criminal Procedure, 1882, no appeal ^l*"1, by ,M1
at the instance of the Local Government lies from an order of acquittal in a —a p^'ct'' u'pon
case which has been tried by a jury, when the questions involved arc purely f»*'" '">»> ,cr-
questions of fact, for such an appeal to lie it must be supported upon a ground dict of" J"r-V'
which is covered by section 418. The Government of Bengal v. Parmeshur
Mullick, I. L. R., 10 CaL, 1029 (1884).
It is not because a Judge or a Magistrate has taken a view of a case in Appnal l>y 1.0-
which the Local Government does not coincide, and has acquitted the accused
persons, that an appeal by the Local Government must necessarily prevail, or oV'twi'iitUtl.
that the High Court should be called upon to disturb the ordinary course of
justice, by putting in force the arbitrary powers conferred on it by section
272 of the Criminal Procedure Code, 1872. The doing so should be limited
to those instances in which the lower Court has so obstinately blundered and
gone wrong as to produce a result mischievous at once to the administration
of justice and the interests of the public. Held, therefore, the Local Govern
ment having appealed from an original judgment of acquittal of a Sessions
Judge, that, as such judgment was an honest and not an unreasonable one, of
which the facts of the case were susceptible, such appeal should be dismissed.
Empress of India v. Gayadin, I. L. R., 4 All., 148 (1881).
One of two prisoners, who were tried jointly before a Bench of Magis- Rcferi-uce to
trates on the complaint of the District Magistrate, appealed to the Sessions mJJJ'J^JLjk.
Judge, aud was acquitted. The District Magistrate thereupon, under sections quit'tal bv s«s-
296 and 297 of the Criminal Procedure Code, 1872, transmitted the proceedings »"»» 'u Ua
in the case to the High Court, and asked that they might be quashed on the
ground that there had been a failure of justice. Held, that the Magistrate
was not competent to refer the proceedings of a superior Court to the High
Court. In re A. David, 6 Cal. L. R., 245 (1880).
452 Of Appeal, Reference, etc. [Ch. XXX I.
Improper ac- The High Court cannot, under the Code of Criminal Procedure, 1872, in"
SyGovenViSSnt tolfere with an improper acquittal except on an appeal by the Government-
Empress v. Mivaji Ahmed, I. L. ft., 3 Bom., 150 (187!))-
Powers of revi- A private prosecutor can move the High Court, in the case of an acquittal
Driv^nm'so*'- exercise its powers of revision under section 2!>7 of the Code of Criminal
cutor. Procedure, 1872. SuHo v. lhmja Prasad, I. L. I!., 2 All., 448 (18711).
Judgment of On the trial by a jury of a person on a charge of murder, the jury found
acquittal-Con- the accused not guilty of the offence of murder, but convicted him of culp-
chamPo" a0'e homicide not amounting to murder. The Sessions Judge, although ho
lnurderor cut- disagreed with the verdict, declined to submit the ease to the High Court
notLmZnUng un(,er section 263 .of tlle Criminal Procedure Code, 1872. The Local Govern-
to murder, ment thereupon directed the Legal Remembrancer to appeal under section
272 of the Code, and in pursuance of this direction an appe d was preferred
by the junior Government Pleader. Held, that the appeal was duly made.
Held, further, that a judgment passed by the Court of Session, following the
verdict of a jury acquitting the prisoner, is a judgment of acquittal within the
meaning of section 272. Held, also, that there being an acquittal on the charge
of murder, the appeal lay. The Empress of India v. Judoonath Gangooly,
I. L. R., 2 Cal., 273 (1877).
Arrest pending In an appeal under section 272 of the Code of Criminal Procedure, 1872,
appeal. t|ie }ijgi, (J0Urt llas power to order the accused to be arrested pending the
appeal, ihe Queen v. Gobin Tewari, I. L. R.f 1 Cal., 281 (1876).
Withdrawal of The withdrawal of a complaint by the complainant operates as an acquit-
complaint—Ac- tal, and the High Court has no authority to entertain the matter at all, except
quit upon an application duly made with the sanction of the Government. Luchi
Behara v. Nilyamtnd Doss, 19 W. R., 55 (187.'i)
Appeal on what 418. An appeal may lie on a matter of fact as well as a
»7bie.ers aAm,H' matter of law, except where the trial was by jury, in which case
the appeal shall lie on a matter of law only.
Expla'nation. —The alleged severity "f a sentence shall, for
the purposes of this section, be deemed to be a matter of law.
Trial by jury Pev MAC['EANi J-i (MlTTBR, J. dubitanti). - The trial of an offence triable
of a case proper- with assessors is not invalid on that ground, but an accused who would have
ly triable with \Ken entitled to an appeal on the facts, if the case hail been tried with
assessors. assessors, is not debarred from that right merely by the fact that the trial by-
jury is not invalid. The Empress v. Mohim Chunder Rat, I. L. U., ;5 Cal.,
765 (1878).
Power of High The High Court, on a point of law, as to the admissibility of reje-tel
Court on a evidence, reserved under clause 25 of the Letters Patent, 18(55, and section
{SeVVedtocoii- 101. of the UiS" Court's Criminal Procedure Act, X of 1875, has power to
sider the merits review the whole case, and determine whether the admission of the reje te 1
of the case. evidence would have affected the result of the trial, and a conviction sh >uld
not be reversed unless the admission of the rejected evidence ought to have
varied the result of the trial (Evidence Act, section 167). Impiratrix v.
Pitamber Jiva, I. L. R , 2 Rom., 61 (1877).
Trial by jury Where a case to which Government had not extended trial by jury was
cable* 'napp''" tried by jury, the trial was not considered invalid on that ground ; but
the Judge's charge was treated as his judgment in the case, and the pri
soncr's appeal heard on the facts. The Queen v. Doorga Churn Skome, 24
W. R., 30 (1875).
Ss. 418-420.] Of Appeal, Reference, etc. 453
Whore a trial was held with a jury, instead of, as it ought to have been, Procedure-Ju-
with assessors, the High Court refused, with reference to the provisions of ry AMessor»-
section 426, Ujde of Criminal Procedure, to reverse the sentence, as it could
dispose of the appeal on the evidence, instead of merely restricting itself to
questions of law. The Quern v. Nor Koo, 18 W. B., 511 (1872).
419. Every appeal shall be made in the form of a petition *££Snot
in writing presented by the appellant or his pleader, and every
such petition shall (unless the Court to which it is presented
otherwise directs; b 3 accompanied by a copy of the judgment or
order appealed against, and, in cases tried by a jury, a copy of
thevheads of the charge recorded under section 367.
Presentation of an appeal-petition by the clerk of the appellant's pleader ^""^"[Ji,,0,}
is equivalent to a presentation by the pleader himself when it is signed by by'the clerk'ol
him and he is duly authorised. Queen- Empress v. haruppa Udayan, I. L. R., 'he appellant'*
20 Mad., 87(1890). "' '
The Criminal Procedure Code, 1882. section -119, requires that a criminal Criminal »«*■},
appeal shall be delivered to the proper officer of the Court either by the resen *
appellant or his pleader. Where a petition of appeal was not presented to
the Court, but was deposited in a petition box kept for the convenience of
parties within the Court precincts and intended for the deposit of papers
for the Court : Held, that it had not been presented and was rightly return
ed for legal presentation. Queen-Empress v. Vasuderayya, 1. L. 11., 19 Mad.,
354 (18%). .
A petition of appeal sent by post is not presented to the Court within the Petition of
meaning of the Criminal Procedure Code, 1882, section 419. Queen-Empress v. tatkm,o1i.ra,Cn"
Arlappa, I. L. K., 15 Mad., 137 (1891).
In a petition of appeal from a conviction, the appellant falsely stated Examination
that the convicting Magistrate declined to summon his witnesses. The Magis- ol" one'prefer-
trate to whom the appeal was preferred culled upon the appellant to verify riim a criminal
the allegations in the petition of appeal on solemn affirmation, and he did ^^^J^tS-
so : Held, that the appellant had not committed an offence under section 181 tiouof appeal,
or 182 of the Penal Code. Queen- Empress v. Subbayya, I. L. R., 12 Mad.,
451 (1889).
In computing the period of limitation prescribed for an appeal from a uVuwner^
sentence of a Criminal Court by art. 154 of schedule II of the limitation Act( Limitation—
1877, the time taken in forwarding an application by a prisoner for a copy of p^j^",^0" °''
the judgment and in transmitting the same from the Court to the jail must officer in charge,
be excluded. In the case of such appeals, presentation of the petition of o(
appeal to the officer in charge of the jail is, for the purpose of the Limitation
Act, equivalent to presentation to the Court. Queen- Empress v. Lingaya,
I. L. R., 9 Mad., 258 (1880).
.. 41 0< i iIf the appellant
r. is in jail,• he may presentii his ?..petition Procedureinwhen
. appellant jail.
ol appeal and the copies accompanying the same to the officer in
charge of ihe jail, who shall thereupon forward such petition and
copies to the proper appellate Court.
Where an appeal, preferred under section 420 of the Criminal Procedure r^Hyapp^Tnnt
Code, 1882, has been admitted by the appellate Court, and notice has been in jail- Poworof
properly given under section 422, and the record of the case has been sent apBN1,'ate (jourt
for ami perused under section 423, the appellate Court is competent, under âui^'absenoe
the last mentioned section, to dispose of the appeal, though the appellant is not of the appellant,
present and is not represented by a pleader. The only limitation placed by
section 423 on the powers of the appellute Court is that the Court, before dis
posing of the appeal, must peruse the record, and, if the appellant is present
or is represented by a pleader, the appellant in person must be heard, or the
pleader must be heard. So hebl by the Full Bench, Mahmooii, J., dissenting.
Held by MahmoOI), J., contra, that the principles of aude alteram partem and
ubi jus ilii remedium and the provisions of section 422 of the Code, as to notice
of appeal, imply that, where an appeal is admitted and not summarily rejected
under section 421, the appellant must have a real opportunity of being heard ;
that in the passage in section 423, " after perusing the record and hearing the
appellant or his pleader if he appears," the word " he" refers to the pleader,
and must not be read as " either of them ;" that, in any case, the words " if he
appears " make it a condition precedent to the disposal of an appeal under the
section that the appellant is heard, or at least has the choice of appearing ; that
the word "appears" refers to the personal appearance of the appellant : and
that an appeal which has been admitted cannot be disposed of unless the ap
pellant is before the appellate Court, or can be heard within the meaning of
section 423. Semble, per Maiimood, J., but the High Court in appeal is compe
tent to send for a criminal to appear before it to explain a difficulty in his case.
Quern-Empress v. Pohpi, I. L. K., 13 All., 171 (1891).
Appeal by pri- In computing the period of limitation prescribed for an appeal from a
JSm—P«wc'it»- sentence of a Criminal Court by art. 154 of schedule II of the Limitation Act,
tion of petition 1877, the time taken in forwarding an application by a prisoner for a copy of
to officer in t]ie judgment and in transmitting the same from the Court to the jail must be
rhiipe of jail. exc],Kied. In the case of such appeals, presentation of the petition of appeal
to the officer in charge of the jail is, for the purpose of the Limitation Act,
equivalent to presentation to the Court. Queen-Empress v. Liur/ai/a, I. L. R.,
9 Mad., 258 (1880).
Summary dia- 421. (1 ) On receiving the petition and copy under section
ESS" °' ■"" 419 or section 4.20, the Appellate Court shall peruse the same,
and, if it considers that there is no sufficient ground for interfer
ing, it may dismiss the appeal summarily :
Provided that no appeal presented under section 149 shall
be dismissed unless the appellant or his pleader has had a reason
able opportunity of being beard in support of the same.
{2 ) Before dismissing an appeal under this section, the Court
may call for the record of the case, but shall not be bouud to do so.
Judgment re- *n re.lec'ting an appeal under section 421 of the Code of Criminal Proee-
Jeetimt mi ap- dure, 1882, the appellate Court is not bound to write a judgment. Queen-
peal ne«i not
be in writing. Empress
r v. Warubai, I. L. 1!., 20 Horn., 540 (1805).
v /
Summary re- It is advisable that a Court when rejecting an appeal in a criminal case
jeetion 'of ap- under the provisions of se tion 421 of the Code of Criminal Procedure 1882,
reeordnjaoui should record shortly its reasons for such rejection in view of the possibility
for rejection, of such order being challenged by an application for revision. Queen-Empress
v. Nannhu, I. L. K., 17 All., 241 (1805).
Appeal by at- A Sessions Judge dismissed an appeal on the ground that it was barred
cu»ed -Order by limitation. On a subsequent application by the accused, the Judge
rejertiiiif appi'.il admitted the appeal and at the hearing acquitted' him. The High Court sent
itaiMUou - S f°r t'ie record in the exercise of its revisional jurisdiction Held, that the
lievisa <>f Mich order of acquittal was ultra vires under section 430, Act X of 1882. The
oTjudtniwnt in or''el dismissing the appeal was final and not open to review. It was argued
criminal mat- that section 421 only applies to orders passed on the merits, and that as the
tcr"- order rejecting the appeal was not of that class, it was not an order " upon
appeal, " and was not final under section 430. Held, that section 421 was not
limited to orders passed on the merits, and that the order in question was an
order upon appeal and final under section 430. Act X of 1882 makes no
provision for review of judgments in criminal matters by subordinate appel
late Courts. The judgment of revision is vested in the High Court, which
has ample powers under Chapter XXXII to rectify any inadvertent failure of
justice. Queen-Empretii v. Bhimappa, I. L. R., lit Bom., 732 (1894).
An appellate Court on rejecting an appeal under the provisions of section Appeal rejected
421 of the Criminal Procedure Code need not give its reasons for the deci- ,!'1l!cl!'',i,'l"1y
sion. Rash Behari Das v. Balgopal Singh, I. R. L., 21 Cal., 92 (18S3). *
The powers conferred by section 421 of the Code of Criminal Proce- ^P^k*"™,"^
dure, 1882, should be exercised sparingly and with caution, and reasons, -Hî^Coiirt^s
however concise, should be given for rejecting an appeal under that section. power of revi.
Where a Sessions Judge rejected an appeal summarily under section 421 of Spp]yjr£ "Jo*
the Code by an order consisting merely of the words " appeal rejected/' and revision,
an application for revision of such order was made to the High Court nearly
nine months thereafter on the ground that the Judge was wrong in rejecting
the appeal without assigning his reason for go doing—held, that this objec
tion, if taken within a reasonable time, would have been valid, but as the
application for revision was made with very great delay, the Court should
not interfere. Queen- Empress v. Ram Narain, I. L. R., 8 All., 514 (188G).
A convicted person appealing is not in the same position before the Appellant
appellate Court as he is before the Court trying him. He must satisfy the JjJ^JJf(, t0{0'h°a.
appellate Court that there is sufficient ground for interfering with the order tcrlerence.
of conviction ; and if no such ground is shown, it is the duty of the appel
late Court not to interfere. Empress v. Sajiwan Lai, I. L. R., 5 AH., 38G
(1883).
An order under section 278 of the Code of Criminal Procedure, 1872, by ^'j™""/, dis'
an appellate Court, rejecting an appeal on a perusal of the petition of appeal, jleai.
and the copy of the judgment or order appealed against, and without calling
for the record and the proceedings of the case, is a final order falling within
the scope of section 285, and is not subject to revision. Empress v. Mahomed
Yashin, I. L. R., 4 Bom., 101 (187i»).
422* If the Appellate Court does tint dismiss the appeal
summarily, it shall cause notice to be given to the appellant or his
pleader, and to such officer as the Local Government may appoint
in this behalf, of the time and place at which such appeal will bo
heard, and shall, on the application of such officer, furnish him
with a copy of the grounds of appeal ;
and, in ciscs of appeals under section 417, the Appellate Court
shall cause a like notice to be given to the accused.
Where an appeal, preferied under section 420 of the Criminal Procedure Power of ap-
Code, 1882, has been admitted by the appellate Court, an.l notice has been {£"ê10^,0r(t
properly given under section 422, and the record of the case has been sent for Mppe"1/0'"8 °
and perused under section 423, the appellate Court is competent, under the absence or
last-mentioned section, to dispose of the appeal, though the appellant is not appellant,
present and is not represented by a pleader. The only limitation placed by
section 423 on the powers of the appellate Court is that the Court, before dis
or is represented by a pleader, the appellant in person must bo heard, or the
pleader must be heard. So held by the Full Bench, Mahmood, J., dissent-
ilia. Held by Mahmood, J., cvuliv, that the principles of aude alteram
456 Of Appeal, Reference, etc, [Ch, XXXI.
partem and ubi jus ibi remedium and the provisions of section 422 of
the Code as to notice of appeal, imply that, when an appeal is admitted and
not summarily rejected under section 421, the appellant must have a real op
portunity of being heard ; that in the passage in section 423, " after perusing
the record and hearing the appellant or his pleader if he appears," the word
" he " refers to the pleader, and must not be read as " either of them;'' that, in
any case, the words " if he appears" make it a condition precedent to the dis
posal of an appeal under the section that the appellant is heard, or at least has
the choice of appearing ; that the word " appears " refers to the personal ap
pearance of the appellant ; and that an appeal which has lieen admitted cannot
be disposed of unless the appellant is before the appellate Court, or can be
heard within the meaning of section 423. * Semite, per Ma h mood, J., but the
High Court in appeal is competent to send for a criminal to appear before it
to explain a difficulty in his case. Queen-Empress v. Pohpi, I. L. R., 13 All.,
171 fi Qni \
Presence of The fact that the pleader of the accused is present in Court when an
pleader at time order is made admitting an appeal does not reliove the Court from the neces-
NoTice oi'the" sitv of givinK ™t'ce to the appellant of the day fixed for the hearing of the
date fixed for appeal. In re Gopal Chunder Mundle, 10 Cal. L. R., 57 (1881).
hearing. v '
Powers of Ap> 423. (7) The Appellate Court shall then send for the record
SfsXlngof" ?f tne c:,se> if sucn record is not already in Court After perus-
appcai. ing such record, and hearing the appellant or his pleader, if he
appears, and the Public Prosecutor, if he appears, and, in case of
an appeal under section 4 1 7, the accused, if he appears, the Court
may, if it considers that there is no sufficient ground for interfer
ing, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order
and direct that further inquiry be made, or that the ac
cused be retried or committed for trial, as the case may
be, or find him guilty and pass sentence on him accord
ing to law ;
(6) in an appeal from a conviction, (1) reverse the finding and
sentence, and acquit or discharge the accused, or order
him to be retried by a Court of competent jurisdiction
subordinate to such Appellate Court or committed for
trial, or (2) alter the finding, maintaining the sentence,
or, with or without altering the finding, reduce the sen
tence, or, (3) with or witliout such reduction and with
or without altering the finding, alter the nature of the
sentence but. subject to the provisions of section 10(5,
sub-section (3), not so as to enhance the same ;
(c) in an appeal from any other order, alter or reverse such
order ;
(rf) make any amendment or any consequential or incidental
order that may be just or proper.
(2) Nothing herein contained shall authorise the Court to
alter or reverse the verdict of a jury, unless it is of opinion that
S, 423.] Of Appeal, Reference, etc, 457
such verdict is erroneous owing to a misdirection by the Judge, or
to a misunderstanding on the part of the jury of the law as laid
down by him.
Where a complaint was dismissed by an Honorary Magistrate and an ap- ^™|™{ "L^.
plication was made to a Presidency Magistrate on the same facts and materials rivaFof'Jlroceed-
for a fresh summons : Held, that as a Presidency Magistrate has co-ordinate inns— Right ot
jurisdiction with an Honorary Magistrate, there was no right of appeal to the ai'l,cn'-
Presidency Magistrate from the order of the Honorary Magistrate. The pro
per course would bo to apply to the High Court under sections 423 and 439 of tho
Code (Act X of 1882) to set aside tho order aDd direct a re trial. Grish Chun-
tier Roy v. Dioarka Dais Agarwallah, I. L. B., 24 Cal., 528 (1897).
Held, that the alteration by an appellate Court of a sentence of a fine of Enhancement
Its. 50 or in default two months' simple imprisonment to a sentence of six yQ^"^"^~
months' rigorous imprisonment was an enhancement of the sentonce, and, as pollute Couit.
such, prohibited by section 423 of the Code of Criminal Procedure, 1882.
Queen-Empress v. Laehmi Kant, I. L. P.., 18 All., 301 (1896).
Tho appellate Court can, under the provisions of section 423 of the Cri- Altering a flnd-
minal Procedure Code, 1882, in an appeal from a conviction, alter tho finding jnf0 <J)fng0'}l"Mal
of the lower Court and find the appellant guilty of an offence of which he conviction,
was acquitted by that Court. Queen-Empress v. J abanullu, I. L. P.., 23 Cal.,
975 (1896).
Section 423 of the Criminal Procedure Code, 1882, is not limited to cases «f™c"urteof '°
triable exclusively by the Court of Sessions. An appellate Court has under Sessions -Often-
that section the power to order an accused person to be committed for trial by ^.j^Me .eê
the Court of Sessions in cases which arc not exclusively triable by the Court court of* 5 '°
of Sessions. Misri Lai v. Laehmi Narain Bajpie, I. L. R., 23 Cal., 350 (1895). Sessions.
The word " verdict," as use 1 in clause (<<") of section 423 of the Code of 'ie-trial.effeet of
Criminal Procedure, 1882, in cases where an accused person is tried for vari- cMedwhereM'!
ous offences arising out of a single act or series of acts, as contemplated by one act consti-
section 236, means the entire verdict on all the charges, and is not limited to tu,,es Mven,l
Ui»
10 verdict. on a particular
t. 1 charge
1 i»i an accused, may 1have 1been con- offences,
upon winch there hasfind
been
victed and appealed against. Where an accused person is charged with and an acquittal 011
tried for various offences arising out of a single act, or series of acts, it being andVconvic-
doubtful which of those offences the act or acts constitute, and where he has tion 011 others
been acquitted by the verdict of a jury of some of such offences ami convict- "ili."" "V|l,'al
ed1 ofc others
fi and1 appeals
1 against. such1 conviction,
• and11where ,.the appellate
, from such con
victlon.
Court reverses the verdict of the jury, and orders a re-trial without any express
limitation as to the charges upon which such re-trial is to be held, such re-trial
must be taken to be upon all the charges as originally framed, and the acquit
tal by the jury on the previous trial upon some of such charges is no bar to
the accused being tried on them again, as, having regard to the provisions of
section 423 of the Code, the provisions of section 403 in that respect cannot
apply to such cases. Krishna Dhan Mandal v. Queen- Empress., I. L. H.. 22
Cal., 377 (1894).
Where a District Magistrate acting as an appellate Court in a criminal i„°e Court m*'"
case altered a sentence of four months' rigorous imprisonment to one of respect of ten-
three months' rigorous imprisonment, but imposed a fine of lis. 10 or in do- t,-nci*.
fault a further term of six weeks' rigorous imprisonment : Held, that as the lat
ter sentence might involve an enhancement of the former, such sentence was
in excess of the powers of the Magistrate having regard to section 423 of
the Code of Criminal Procedure, 1882. Queen-Empress v. Ishri, I. L. K., 17
All., 67 (1894).
Appellate A Session Judge lias no power to enhance a sentence in appeal, by alter-

Courfa power j„g ,t 8entence of line into one of imprisonment. Queen-Empress v. Dan Sang
5onccd"nnT Dada, I. L. U., 18 Bom., 751 (1893).
into one of im
prisonment. ^ .g comp0jen^ to !t Sessions Judge acting as a Court of appeal under sec-
Sessions Judire, tion 423 of the Code of Criminal Procedure, 1882, having reversed the finding
Knrt'ofup'penl ,im' sentence, to order the appellant to be committed for trial to the Court of
- Commitment. Session. Queen-Empress v. Mania Bakhxh, I. L. K., 15 All., 205 (1893).
Appenl prefer- Where an appeal, preferred under section 420 of the Criminal Procedure
hfn"tbii "jnU- Code> 1882> na8 ,,een admitted by the appellate Court, and notice has been
Power ofnppel- properly given tinder section 422, and the record of the case has been sent for
dis6 C«Mif h' • Pon,sei' under section 423, the appellate Court is competent, under the
peu'Tiirabsence last-mentioned section, to dispose of the appeal, though the appellant is not
oftheappel- present anil is not represented by a pleader. The only limitation placed by
lu"t- section 423 on the powers of the appellate Court is that the Court, before dis
or is represented by a pleader, the appellant in person must be heard, or tho
pleader must be heard. So held by the Full Bench, Mahmood, J., distenting.
Held by Mahmood, J., contra, that the principles of aude alteram partem and
nbijus ibi remedium and the provisions of section 422 of the Code, as to no
tice of appeal, imply that, where an appeal is admitted and not summarily re
jected tinder section 421, the appellant must have a real opportunity of being
heard; that in the passage in section 423 " after perusing the record and hear
ing the appellant or his pleader if he appears," the word "he" refers to the
pleader, and must not be read as " either of them ;" that, in any case, the
words " if he appears " make it a condition precedent to the disposal of an ap
peal under the section that the appellant is heard, or at least has the choice of
appearing; that the "appears " refers to thepersonal appearance of the appellant;
and that an appeal which has been admitted cannot be disposed of unless the
appellant is before the appellate Court, or can be heard within the meaning of
section 423. Semble, per Mahmood, J., but the High Court in appeal is com
petent to send for a criminal to appear before it to explain a difficulty in his
case. Queen-Empress v. Pohpi. I. L. R., 13 All., 171 (1891).
Accomplice— Case in which, upon review, a certificate having been granted by the
Corroboration— Advocate-General under section 20 of the Letters Patent, a conviction waB
tion ofPevi'len'cc 'lllasne,l on the ground of improper reception of evidence and misdirection.
—Misdirection— The accused being upon his trial at the Sessions for murder, the two principal
Review. witnesses for the prosecution were G and .1/, to whom pardons were tendered
by the committing Magistrate under section 337 of the Criminal Procedure Code,
1882, and who had accepted the pardons. The Judge riad to the jury state
ments (which had not been admitted in evidence) by G and M purporting to
have been taken under section 3G4. Held, that the improper reception of such
evidence constituted a decision erroneous in point of law calculated to prejudice
the prisoner. The Judge further charged the jury that they were not to con
vict upon the evidence of G if satisfied that he was an accomplice and un
corroborated, but coupled the direction with a strong expression of opinion
that G was not an accomplice. Held, that this constituted a misdirection in
fact, though not in form, calculated seriously to prejudice the prisoner's case.
The Queen-Empress v. O'Hara, I. L. R., 17 Cal, 042 (1890).
Appeal by local Under the Code of Criminal Procedure, 1882, tLe Local Government have
Government the same right of appeal against an acquittal as a person convicted has of
of°ac '"•'.'{"i" appealing against his conviction and sentence, and there is no distinction bet
ween the mode of procedure and the principles upon which both classes of
appeals are to be decided. The Queen-Empress v. Bibhuti Bhusan Bit, I. L,
R., 17 Cal., 485 (1890).
S. 423-] Of Appeal, Reference, etc. 459
The Magistrate of a District when acting as an appellate Court is not Security for
competent to make an order under section 106 of the Criminal Procedure Code, Jjj^l'ifjiiilriii-
1882, requiring the appellant to furnish security for keeping the peace. In re tratcof the Di«-
Atlu, I. L. R.,' 16 Cal., 77H (188<l).
v trict-Appollato
Court.
In an appeal before the High Court from a conviction and sentence for Loss of record of
murder, it appeared that the entire record of the proceedings of tho trial had Seasiona trial-
been lost, and that no trace of it could be discovered. The Court directed ordorcd.
that the conviction and sentence and all other proceedings in the trial should
be set aside, and a new trial of the accused held by the Sessions Judge.
Queen-Empress v. Khimal Singh, W. X., N.-W. P., 1889, p. 55.
Where pending an appeal in the lower appellate Court, the entire record of Dcatmction of
the first Court was destroyed, and the lower appellate Court, though it re- Jicrc,QrjourItd"
examined the witnesses, never had before it the pleadings or the evidence as appeal."
originally given, the High Court in second appeal set aside the proceedings
and directed the first Court to re-try the case as a fresh suit. (Ihuluman v.
Karima, W. N., N.-W. P., 1888, p. 117.
A head-constable was convicted under section 330 of the Penal Code, Enhancement
and, at a trial before a Sessions Judge, sentenced to four months' simple iio- of so'i'ence on
prisonment. The prisoner appealed. The High Court, in dismissing the aPPe" '
appeal, directed, as a Court of Revision, that the sentence passed should be
enhanced. Mehter Alt v. Queen-Empress, I. L. R., 11 Cal., 530 (1885).
Where the accused, who was a head-constable, was found guilty of mak- J^'',",1,1^".!
ingafalse charge under section 21 1, and of giving false evidence under sec- Enhancement
tion 193 of the Penal Code, and the Sessions Judge passed sentences of three of sentence,
months' simple imprisonment for each offence, anil, taking into consideration
the accused's past conduct, directed that the sentences should run concurrent
ly : Held, that the sentences were inadequate and illegal. Accordingly, the
sentences were enhanced to three months' rigorous imprisonment for each
offence ; and as the two offences were distinct, the High Court directed, under
section 35 of the Criminal Procedure Code, 1882, one sentence to commence
after the expiration of the other. Queen-Empress v. Pir Mahomed, I. L. R.,
10 Bom., 254 (1885).
Where a master entrusts his servant w itli money for the payment of an Criminal
open account, e.., an account of which the items have never been checked or ^JJ^J^jf Jnj9t
settled, and the tradesman makes the serv ant a present, and the transaction servunt—
amounts to a taxation of the bill and a reduction of the price by the servant, Servant
the latter obtains the reduction for his master's benefit, the money in his ulone"» for paj-
hands always remains the master's property, and, if he appropriates it, he meat to tradei-
coimnits criminal breach of trust. But where the master himself has settled ^tt"ed by"mia'
the account with the tradesman fur a specific sum, and sends the servant with ter for a speci-
the money, and the servant, after making the payment, accepts a present from aum-Grutu-
the tradesman, in that case the servant does not commit criminal breach of man to aorviuit
trust, inasmuch as the money is given to him by a person whom ho believes — Ratht of inas-
to have a right to give it, though it may be that, according to the strict equit- ^t\uty IM"fit °'
able doctrines of the Court of Chancery, he is bound to account to the master
for the money. Where the Court of Session had tried, convicted, and sen
tenced an accused person under section 40'J of the Penal Code, and the High
Court was of opinion that the conviction was not sustainable under that sec
tion, the Court refused to alter the finding, under section 42.'! of the Criminal
Procedure Code, 1882, to a conviction for some other offence for which the
accused had not been charged or tried Observations on the necessity of re
quiring corroboration, in material particulars, of the evidence of an accom
plice. Queen-Empress v. Imdad Khun, I. L. 1{., 8 All., 120 (1885).
Appellate Court, The appellate Court referred to in section 423 of the Criminal Procedure
nTftmeiit. °m" Code, 1882, can, in an appeal from a conviction, only order an accused person
to be committed for trial when it considers that the accused is triable exclu
sively by the Court of Session. The meaning of the words in section 423 {It)
of the Code, " or order him to be tried by a Court of competent jurisdiction
subordinate to such appellate Court, or committed for trial," is as follows :
if, in an appeal from a conviction, the appellate Court finds that the accused
person, who was triable only by a Magistrate of the first class, or by a Court
of Session, has, by an oversight or under a misapprehension, been tried, con
victed, and sentenced by a Magistrate of the second class, the appellate Court
may in thai case reverse the finding and sentence and order the accused to be
re-tried by a Magistrate of the first class or by the Court of Session ; and, in
like manner, when the appellant, who was triable solely by the Court of Ses
sion, has been tried, convicted, and sentenced by a Magistrate of the first
class, the Sessions Judge, in disposing of the appeal, is empowered to reverse
the finding and sentence, and to order that the accused be committed for trial.
Queen-Empress* v. Sulha, I. L. B , 8 All., 14 (1885).
Misdirection of Three persons, who were attacked and wounded in an affray, informed
!ri?i- Burma "ie P"''00 on tne same day that the persons who had attacked themiwere A, B,
Courts Act cf and C. Kighteen days afterwards the same complainants gave to the Magis-
1875, section so tnite enquiring into the case the names of four other persons, who they said,
—Hiieii
Referrence
Court. to -.i "ie
Avlt'' ,i three° persons hrst. accused,i formeda the attacking
. , • party. mi
X he seven
accused were tried jointly for the offence before the Additional Recorder of
ICangoon and a jury. In his charge to the jury the Additional Recorder omit
ted to call their attention to the fact that four out of the seven accused had
not been mentioned by the prosecutors until after eighteen days had passed
over The prisoners were convicted. Held, that the Additional Recorder
misdirected the jury ; that under the circumstances tho misdirection prejudic
ed the four persons last accused ; and that the verdict must be set aside as
far as they were concerned. Leiu Tu v. Queen- Empress, I. L. R., 11 Cal., 10
(1884).
Witnesses, duly Where « Sessions Judge gave it as a sufficient reason for the non-pro-
tfon'to Vrodu'-e"
l,ce' imot'on
had been°êxamined
certain witnesses in Court onMagistrate
the part ofagainst
the prosecution
' 0 l>ro1 by the committing the expressthat
wishthey
of
the police-officer in charge of the prosecution : Held, that that was not a valid
conducting a caso for the prosecution, all the persons who are alleged or
and examined. Queen- Empress v. Ram Suhui Lull, I. L. R., 10 Cal., 1070
(1884).
Appeiil by Locnl Under the provisions of the Code of Criminal Procedure, 1882, no appeal
»'PIff!'i""eilt— a' the instance of the Local Government lies from an order of acquittal in a case
facts from vcr- which ,has been
Appeal upon , . , , . , ,by a jury,
tried . . the
when ,. questions
,. . . ,1 are1 purely
involve , ques-
dict of n jury, tions of fact ; for such an appeal to lie it must be supported upon a ground
which is covered by section 418. The Government of Bengal v. Farmeshur
Mullick, I. L. R., lOCal., 1029 (1884).
Enhancement T'ie M'S'1 Court, in the exercise of its powers of revision, can enhance a
of sentence so sentence so as to alter its nature. Queen-Empress \. Rain Kuria. I. L. R., 6
..^ ..her it, A„ G22 (18g4)
Acquittal, up. Section 423 («) of the Code of Criminal Procedure, 1882, applies only to
DistriTM' '~ " ^'f?'' ôurt- ^ second class Magistrate, having held that a prima facie case
trnteVpowcrs"1* 'liln< ',ecn established against the accused in a case of mischief, adjourned the
of. ' trial to enable the accused to adduce evidence. On the day to which the trial
was adjourned, the complainant not being present, the Magistrate acquitted
S. 423.] Of Appeal, Reference, etc. 461
the accused under section 247 of the Code. The District Magistrate enter
tained an appeal from this order under section 423 (a) of the Code, reversed
it, and directed a re-hearing, on the ground that the complainant and his vakil
had appeared before the Court shortly after the case had been dismissed by
the second class Magistrate. Held, that the order of the District Magistrate
was illegal. Rangasami Ayyangar v. Narasimlndu Xyak, I. L. R., 7 Mad.,
213 (1883).
A convicted person appealing is not in the same position before the ^'['([j*"otB|10W
appellate Court as he is before the Court trying him. He must satisfy the ground for in-
appellate Court that there is sufficient ground for interfering with the order terferonoc.
of conviction ; and if no such ground is shown, it is the duty of the appellate
Court not to interfere. Empress v. Sajiwan Ltd, I. L. R., 5 All., 380 ( 188.1j.
Per White J.—The sound rule to apply in trying a criminal appeal, Jr"[;*.,HJrim1nal
where questions of fact are in issue, is to consider whether the conviction is app:il.
right, and in this respect a criminal appeal differs from a civil one. In the
latter case the Court must be convinced, before reversing a tinding of fact
by a lower Court, that the tinding is wrong. Protap thunder Mukerji v.
Empress, 11 Cal. L. R., 25 (1882).
The Magistrate of a district, when exercising the powers of an appellate ^"'.'jl^Vhi'i
Court, is competent to make an order under section 48'J of the Criminal peiuw -Mann-
Procedure Code, 1872, requiring the appellant to furnish security for keeping Jjr!iJe.0/ lhe
the pleace. Empress a/ India v. Kamta Prasad, I. L. R., 4 All., 212 (1882). dls,r,cL
When a Sessions Judge on appeal annuls the conviction of a Magistrate for coram nnti
want of jurisdiction, and omits to order a re-trial at the time under section "c r
284 of the Criminal Procedure Code, 1872, he is not precluded, by virtue of pru'wuitcfor
section 4t>4, from passing such an order subsequently. The order annulling perjury un-
the conviction in such a case does not amount to an acquittal. Where j|JSrt!ve^rial-
sanction is given for a prosecution for perjury, and the case tried by an in- Evidence of
competent
r . Court, . and the conviction
., . quashed
.'. on.. appeal,
rr a . competent
r , Court trial
»'!"'<>*'» 011
for breach
may re-try the prisoner upon the subsisting sanction without any order ot the 0f trust.admit-
appellate Court by whom the conviction is quashed. The evidence of a 10,1 '» 8».bso-
witness given in a proceeding pronounced to be coram iioti jiulice cannot be com'plafnant'
used under section 33 of the Evidence Act, if the witness is dead, on a re- for brinKing a
trial before a competent Court. R charged A with breach of trust and S gave Ijronirh'aduiit-
evidence in support of the charge. A being acquitted, II was tried for ted npmist
making a false charge, and S for perjury. Held.—(1) That the depositions witnem tried
given by witnesses in the first case could be used against R in the second case son'c casi?
but not against S under section 33 of the Evidence Act. (2) That the word
" questions " in section 33 docs not mean " all the questions," and that,
though additional issues were involved in the second trial, yet the evidence
as to the issues common to both trials was properly admitted at the second trial
against R. In re Rami Reddi, I. L. R., 3 Mad., 48 (1881).
It is not because a Judge or a Magistrate has taken a view of a case in Appeal by Local
which the Local (iovernincnt does not coincide, and has acquitted accused poverumcnt
persons, that an appeal by the Local Government must necessarily prevail, or oTacquitta!?"
that the High Court should be called upon to disturb the ordinary course of
justice, by putting in force the arbitrary powers conferred on it by section
272 of the Criminal Procedure Code, 1872. The doing so should be limited
to those instances in which the lower Court has so obstinately blundered and
gone wrong, as to produce a result mischievous at once to the administration
of justice and the interests of the public. IMd, therefore, the Local Govern
ment having appealed from an original judgment of acquittal of a Sessions
Judge, that, as such judgment was an honest and not unreasonable one, of
which the facts of the case were susceptible, such appeal should be dismissed.
Empress 0/ India v. Gayadin, I. L. R., 4 AH., 148 (1881).
Enquiry into Held, where ;i Magistrate had tried a ease exclusively triable by a Court
caste triabla by of Session, and the conviction of the accused person and the sentence passed
Court of
Session—Com upon him at such trial were for that reason annulled by the Court of Session,
mitment. but the proceedings held at such trial were not annulled, that such Magistrate
might commit the accused person to the Court of Session on the evidence
given before him at such trial. Empress of India v. Haiti Bullish, I. L R., 2
All., U10 (1880).
Prosecutor-- There is no rule that a convicted person cannot institute proceedings.
convicted In a case of adultery, sexual intercourse must be proved ; the sexual inter
person—
Adultery— course required for adultery being the same identical thing as the sexual in
High Court — tercourse required for rape. It is not necessary that there should be direct evi
Kvidencc— dence of an act of adultery, nor that the adulterer should know whose wife
Tri»l.
the woman is, provided he knew she was a married woman. The High Court
declined, on appeal, to receive evidence which was available at the trial below,
when the prisoner deliberately elected not to give evidence in reply to the
case made against him. Per Mawcby, J.—It is not the duly of the High Court,
in appeal, to try a prisoner de ttono upon the recorded depositions : the Court is
bound, in forming its conclusions as to the credibility of the witnesses, to
attach great weight to the opinion which the Judge who heard them has ex
pressed upon that matter. The Qtwen v. Madhub thunder (iiri Mohunt, 21 W.
1!., 13 (1873).
Procedure—
Sessions Judgtl fromIfa the evidence which comes before a Sessions Judge in a regular appeal
Magistrate's order is not sufficient to reasonably satisfy him that the
prisoners have been rightly convicted, he ought to acquit them. Kheraj
Mullah v. Janab Mullah, 2U W. R., 13 (1873).
Duty of appel An appellate Court is bound precisely in the same way as the Court of
late Court. (j ,. t instance to test evidence extriusieally as well as intrinsically. In re Goo-
manee, 17 \V. R., 59 (1872).
Judgments of 424. The rules contained in Chapter XXVI as to the
subordinate ap- judgment of a Criminal Court of original jurisdiction shall apply,
"wnateCourfs!"
so far as may be practicable, to the judgment of any appallate
Court other than a High Court :
Provided that, unless the Appellate Court otherwise directs,
the accused shall not. be brought up, or required to attend, to
hear judgment delivered.
nentof A Magistrate having special powers under section 34 of the Code of
-\vimtt»..ch"H Criminal Procedure, 1882, convicted one f B under sections 471 and 476 of
judgment must the Penal Code and sentenced him to four years' rigorous imprisonment. /'
contain. J} appealed to the Sessions Judge, and on that appeal the Sessions Judge re
corded the following judgment:—"I have perused the record and sec no
cause for interference with the finding of the District Magistrate. As re
gards the sentence, it is not excessive, but, having regard to the great age of
the appellant, I will reduce it to three years' rigorous imprisonment with three
months' solitary confinement." Held, that this judgment was in compliance
with the provisions of section 307 of the Code, read with section 424 of the
same Code. Queen-Empreet v. Fandeh Bhat, I. L. R., 19 All., 506 (18'.»7).
Screening an Section 213 of the Penal Code is applicable only when it is proved that
offender—Con the person screened or attempted to be screened from legal punishment has
tents of judg
ment. been guilty of an offence, and not when there is merely a suspicion of his hav
ing committed some offence. On appeal the Sessions Judge gave the fol
lowing judgment After reading the evidence and hearing the learned
Ss. 424-426 ] Of Appeal, Reference, etc. 463
counsel for the appellant and the learned Government pleader, I am convinced
that the Deputy Magistrate has decided the case rightly. The appeal is dis
missed." UeUI, that the judgment was not in accordance with the law within
the meaning of sections 3tJ7£anrl 424 of the Code. Girith Afyte v. Queen-
Empress, I. L. I!., 23 Cal., 420 (1800).
A Deputy Commissioner, after hearing an appeal from a Deputy Magis" y»nn nml con-
trate who had convicted the appellant of rioting, gave the following judgment:— JjJJJ*" 'Jjgjf
"After hearing the arguments of the pleader for the appellants and examining ment in criminal
the record I am of the opinion that the lower Court had ample ground for
convicting the accused of rioting. I do not consider the sentence too severe.
Appeal dismissed." Held, that this was not a judgment within the meaning of
sections 367 and 424 of the Code of Criminal Procedure. 1882, and that the up
peal must he re-heard, luu kan v. Somesher fallowed, I. L. B., 22 Cal., 241
(1894).
A Magistrate, after hearing an appeal from the Deputy Magistrate, gave form nml con-
the following judgment :—" I see no reason to distrust the rinding of the lower tent* of jwte*
Court. The sentence passed, however, appears harsh. I reduce the term of jJJ^j {^'j^'J.
imprisonment to fifteen days. The line and terms of imprisonment in de- trnte.
fault will stand ." Held, following the decision in Kamaruddin Dai v. Sonatun
Mandal, that it was not a judgment within the meaning of sections 307 and 424
of the Code. In re Ram Das Maghi, I. L. B., 13 Cal., 110 . 1880)
A Sessions Judge, after hearing an appeal, gave the following judgment : Judgment, con-
— " It is urged that the evidence is quite untrustworthy, and that the decision Unti of.
should be reversed. The depositions have been gone through, and commented
on at considerable length. The Court finds no ground for interference. Tl e
appeal is dismissed." Held, that this was not a sufficient compliance with sec
tions 307 and 424 of the Code of Criminal Procedure, 1882. and that the case
should be re-tried. Kamaruddin Dai v. Sowtun Mandal, I. L. R., 11 Cal , 441*
(1885).
425* (7) Whenever a case is decided on appeal by the Order i»y High
High Court under this Chapter, it shall certify its judgment or ^cerimeSTo
order to the Court by which the finding, sentence rr order appealed low,;r Uo,irt-
against was recorded or passed. If the finding, sentence or order
was recorded or passed by a Magistrate other than the District Ma
gistrate, the certificate shall be sent through the District Magistrate.
(2) The Court to which the High ' 'ourt certifies its judgment
or oider shall thereupon make such orders as nre conformable to
the judgment or order of the High Court; and, if necessary the
record shall be amended in acc> rdance therewith.
426. {1) Fending any appeal by a convicted person, the H^pejaiou ^
Appellate Court may, for reasons to be reorded by it in writing, in* appeal-a»
order that the execution of the sentence or order appealed against j™1sie0ll0{)B"';pcl"
be suspended and, also, if he is in confinement, that he bj released
on btil or on his own bond.
{2) The power conferred by this section on an Appellate
Court m iv be exercised al-o by the Hi-h Court in the case of any
appeal by' a convicted person to a Court subordinate thereto.
464 Of Appeal, Reference, etc. [Ch. XXX f.
(<3) When the appellant i.s ultimately sentenced to imprison

ment, penal servitude or transportation, the time during which he
is so released shall be excluded in computing the term for which he
ia so sentenced.
Suspension of A sentence of imprisonment cannot be suspended to take effect at a future
sentence. period, but must commence from tbe time that the sentence is passed. Where
a Deputy Magistrate postponed the execution of a sentence of imprisonment
for a stated period, at the request of the accused, to allow the accused to
appeal, it was held that the sentence was bad in law, and could not be carried
into execution. In re Kithen Soonder Bhuttacharjee, 12 W. K., 47 (1869).
Arrest ofappeal
ac- ......
427. , W hen an . appeal is presented
r , ,. ,.under section 417, j,the
oiuedui lr .
frouiiacquiitui. high I. ourt may issue a warrant directing that the accused be
arrested and brought before it or any subordinate Court, and the
Court before which he is brought may commit him to prison pend
ing the disposal of the appeal, or admit him to bail.
Arrest pend- When an appeal has been preferred under section 272 of the Code of Cri-
ing upneal. minal Procedure, 1872, the High Court may order the accused to be arrested
pending the appeal. Emprets of India v. JIangu, I. L. It., 2 All., 340 (1879).
Arrest pending In an appeal under section 272 of the Code of Criminal Procedure, 1872,
uppeal. t|)e jjjgj, (jourt has power to order the accused to be arested pending the
appeal. The Queen v. Gobind levari, I. L. B., 1 Cat., 281 (1870).
AwduJt0far5 428. (/) In dealing with any appeal under this Chapter,
therevldelice'or the Appellate Court, if it thinks additional evidence to be necessary,
uken'. U 10 shall record its reasons, and may either t ike such eivdence itself,
or direct it to be taken by a Magistrate, or, when the Appellate
Court is a High (Jourt, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of
Session or tho Magistrate, it or he shall certify such evidence to
the Appellate Court, and such Court, shall thereupon proceed to
dispose of the appeal.
(3) Unless the Appellate Court otherwise directs, the ac
cused or his pleader shall he present when the additional evidence
is taken ; but such evidence shall not be taken in the presence of
jurors or assessors.
(4) The taking of evidence under this sections shall be sub
ject to the provisions of Chapter XXV, as if it were an inquiry.
Verification of I" a petition of appeal from a conviction, the appellant falsely stated that
petition of the convicting Magistrate declined to summon his witnesses. The Magistrate
uppeal. to whom the appeal was perferred called upon the appellant to verify the al
legations in the petition of appeal on solemn animation, and he did so. Held,
that the appellant had not committed an offence under section 181 or 182 of
the Penal Code. (Juten-Emprets v. Subbuyya, I L. R., 12 Mad., 451 (1889).
Correction of T'ie Yen('ees ufu pIot of laI".' aItere(l tne number by which the land was
mistake in do- described in the deed of sale, doing so because such number was not the
cument. tight number. Having made this alteration, they used the deed of sale as
Ss. 427-431.] Of Appeal Reference, etc. 465
evidence in a suit. Held, that the alteration of the deed did not amount to
"forgery" within the meaning of section 4G3 of the Penal Code, nor could
the deed after the alteration be designated a " forged document" as contem
plated by section 470, the intention to cause wrongful loss or wrongful gain,
or to defraud, being wanting ; nor could it be said that, in using the deed, the
vendees were " dishonestly " or " fraudulently " using as genuine, a " forged
document," and, therefore, the use by the vendees of the deed did not
constitute an offence under section 471 of the Penal Code. Further, that
their use of it did not render them liable to conviction under section 196 of
that Code. Empress 0/ India v. Fatek, I. L. K., 5 AH., 217 (1882).
429. When the .Judges composing the Court of Appeal 5to?Jnd««oi

are equally divided in opinion, the case, with their opinions there- Court of «pmal
on, shall be laid before another Judge of the same Court, and dSi?qu*">
such Judge, after such hearing (if any) as he thinks fit, shall
deliver his opinion, and the judgment or order shall follow such
opinion-
430. Judgments and orders passed by an Appellate Court KualWyot
upon appeal shall be final, except in the cases provided for in appeal,
section 117 and Chapter XXXII.
A Sessions Judge dismissed an appeal on the ground that it was barred Appeal by
by limitation. On a subsequent application by the accused, the Judge ad- J!SSSm"iS23
mitted the appeal and at the hearing acquitted him. The High Court sent as barred by
for the record in the exercise of its revisional jurisdiction. Held, that the B?viow™l~such
order of acquittal was ultra vires under section 430, Act X of 1882. The order—Finality
order dismissing the appeal was final and not open to review. It was argued ot judgment in
that section 421 only applies to orders passed on the merits, and that as the tce"mmo1 mnt'
order rejecting the appeal was not of th it class, it was not an order " upon
appeal " and was not final under section 430. Hfltl, that section 421 was not
limited to orders passed on the merits, and that the order in question was an
order upon appeal and final under section 430. Act X of 1882 makes no
provision for review of judgments in criminal matters by subordinate
appellate Courts. The judgment of revision is vested in the High Court,
which has ample powers under Chapter XXXII to rectify any inadvertent
failure of justice. Quein- Empress v. Bhimappa, I. L. K,, 19 Bom., 732
(1894).
431. Every appe.il under section 417 shall finally abate on *J^SEen* of
the death of the accused, and every other appeal under this
Chapter (except an appeal from a sentence of fin 3) shall finally
abate on the death of the appellant.
Two persons, Mahomadshah and Nabishah, were convicted of criminal Appeal by
breach of trust and each was sentenced to one year's rigorous imprisonment c^tctkm-
and a fine of Us. 1,000. Both prisoners filed an appeal to the High Court. Death of
Nabishah died pending his appeal. On Mahomadshah's appeal the High HSSmBnTfll
Court passed an order acquitting him and reversing his conviction and sen- appeal -Komedy
tence. Thereupon one of the relatives of the deceased Nabishah applied to open to the de-
the High Court to set aside the conviction and sentence passed in his case, JJJJJ^J £jJJ| "
ami order the fine to be refunded. Held, that on Nabishah's death his
appeal abated under section 431 of the Code of Criminal Procedure, 1882.
As the case turned on ihe appreciation of evidence, the High Court declined
to interfere in the exercise of its revisional jurisdiction, referring the lega
representatives of the deceased to the Governor in Council for redress. In
re Nabishah, I.L. R., 19 Bom., 714 (1894).
30
466 Of Appeal, Reference, etc. [Ch. XXXlI*
CHAPTER XXXII.
Of Reference and Revision.

Reference by 432. A Presidency Magistrate may, if he thinks fit, refer for
jristrateio a" tie opinion of the High Court any question of law which arises in
High Court. ^ho hearing of any eiso pending bafore him, or may give judgment
in any such case subject to the decision of the High Court on such
reference and, pending such decision, may either commit the ac
cused to jail, or release him on bail to appear for judgment when
called upon.
£!co?di.I1K0tSaso *33, (/) When a question has been so referred, the High
HfehCoart Court shall pass such order therein as it thinks fit, and shall cause
'* °u a copy of such order to be sent to the Magistrate by whom the re
ference was made, who shall dispose of the case conformably to
the said order.
Direction as to (2) High Court may direct by whom the costs of such
eosts. reference shall be paid.
Power to re- 434> (/) When any person has, in a trial before a Judge of
nrUini? i'lfor^9 a High Court consisting of more Judges than one and acting in
jyySScoSr?1 tae exercise of its original criminal jurisdiction, been convicted of
an offence, the Judge, if he thinks fit, may reserve and refer for
the decision of a Court consisting of two or more Judges of such
Court any question of law which has arisen in the course of the
trial of such person, and the determination of which would affect
the event of the trial.
.
Procedure 12) "
, \~L If the Judge
,. *> , reserves
, • • any /1 such ouestion,
1i the
1 5person
. . ••con-
when question vicled shall, pending the decision thereon, be rem inded to jail, or,
reserved. y. ^ jujgC thinks fit, be admitted to bail ; and the High Court
shall have power to review the case, or such part of it as may be
necessary, and finally determine such question, and thereupon to
alter the sentence passed by the Court of original jurisdiction, and
to pass such judgment or ord ir as the High Court thinks tit.
. _ Casein which, upon review, a certificate having been granted by the Ad-
lin"roiSr ro°n vocate-General under section 26 of the Letters Patent, a conviction was quashed
ception of evion ti)C ground of improper reception of evidence and misdirection. The accused
dfrecliorcÊvi- being upon bis trial at the Sessions for murder, the two principal witnesses
dencM-Letters for the prosecution were G and M, to whom pardons were tendered by the
Patent of 1885, committing Magistrate under section 337 of the Criminal Procedure Code, 1882,
soctrnn 26-Ee- anti w]10 1,^1 accepted the pardons. The Judge read to tlie jury statements
(which had not been admitted in evidence) by G and M purporting to have
been taken under section 304. Ilelrf, that the improper reception of such evi
dence constituted a decision erroneous in point of law calculated to prejudice
the prisoner. The Judge further charged the jury that they were not to con
vict upon the evidence of G if satisfied that he was an accomplice and uncor
roborated, but coupled the direction with a strong expression of opinion that
G was an accomplice. Held, that this constituted a misdirection in fact,
though not in form, calculated seriously to prejudice the prisoner's case. The
Queen-Emjjreiis v. O'Uara, I. L. B., 17 Cal., 042 (18'JO).
Ss, 432-435.] Of Appeal, Reference, etc. 467
The prisoner, on his arrest, made a statement in the nature of a confession Admissibility
which was reduced into writing by one of the inspectors in whose custody the confession™!'©-
prisoner was, and subsequently signed and acknowledged by the prisoner in lice-officer also
the presence of the Deputy Commissioner of Police at the Police Office, the J^JjUy'JSJ'r
Deputy Commissioner receiving and attesting the statement in his capacity missioner of
as Magistrate and Justice of the Peace. At the trial of the prisoner at the Policem C»I-
Criminal Sessions of the High Court, this statement was tendered in evidence plBtciit, 1805,"
against him, and admitted by the Judge, who overruled an objection on be- section M-
lmlf of the prisoner that, under section 25 of the Evidence Act, it was in- ^y^dvocatc-
admissible. On a case certified by the Advocate-General under clause 26 of General.
the Letters Patent, he'd, that the confession was, under section 25 of the Evi
dence Act, not admissible in evidence. Per Garth, C. J.—Section 26 of the
Evidence Act is not to be read as qualifying' the plain meaning of section 25.
In construing section 25, the term " police-officer " is not to be read in a tech
nical sense, but in its more comprehensive and popular meaning. Per curiam —
Section 167 of the Evidence Act applies as well to criminal as to civil cases.
Per Garth, C. J. (Pontikex, J., doubting).—The Court which under that section
is to decide upon the sufficiency of the evidence to support the conviction is, in
a case coming before the Court under section 26 of the Letters Patent, the
Court of review, and not the Court below. Such decision is to be come to on
being informed by the Judge's notes, and if necessary by the Judge himself,
of the evidence adduced at the trial. Per curiam.—Apart from section 167,
the Court has power, in a case under clause 26 of the Letters Patent, to
review the whole case on the merits, and affirm or quash the conviction.
The Queen v. Hurribole Ch under Ghose, I. L. R., 1 Cal., 207 (1876).
435. (/) The High Court or any Sessions Judge or District g^XStfS
Magistrate, or nny Subdivision al Magistrate empowered by the inferior court
Local Government in this behalf, may call for and examine the
record of any proceeding before any inferior Criminal Court situate
within the local limits of its or his jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or pro
priety of any finding, sentence or order recorded or passed, and as
to the regularity of any proceedings of such inferior Court.
(2). If any Subdivisional Magistrate acting under sub-section
{1) considers that any such finding, sentence or order is illegal
or improper, or that any such proceedings are irregular, he shall
forward the record, with such remarks thereon as he thinks fit, to
the District Magistrate.
(3) . Orders made under sections 143 and 1 1 1 and proceed
ings under Chapter XII and section 176 are not proceedings with
in the meaning of this sectiou.
(4). If an application under this section has baen made
either ti> the Sessions Judge or District Magistrate, no further
application shall bo entertained by the other of them.
The power conferred by section 438 read with section 435 of the Crimi- {J?*'e.r °' "'S
nal Procedure Code, 1882, upon a District Magistrate to make reference to the trste'to que*"*
High Court, refers clearly to a " proceeding before any inferior criminal tion the pro-
Court." By the words " or otherwise " in section 438 the Legislature never fl|ê,tJ„°'
intended to give to a Magistrate the power to question the propriety of a tence bj the
judgment or sentence by a superior criminal authority ; nor by the use of the 8essioius Judge.
468 Of Appeal Reference, etc. [Ch. XXXIl.
words " or which lias boon reported for orders" in section 439 could it have
been intended that such report might be made by an inferior criminal authority
with respect to a proceeding by a superior authority. Queen-Empress v.
Karamdi, I. L. R., 23 Cal., 250 (1895).
Enquiry before A Magistrate, makingan enquiry before issue of an order under Criminal
under' °nler Procedure Code, 1882, section 144, is acting in a stage of a judicial proceed-
Aot^C of" 'n&> an(l 'liis> therefore, jurisdiction to take action under section 470, if he is
1882—Judicial of opinion that false evidence has been given before him. Queen-Empress v.
Keêv'dence. Tirunarasimha Chari, I. L K., 19 Mad., 18 (1895).
Disputed pos The District Temple Committee dismissed the trustees of a certain temple
session - i-evi* and appointed others. The dismissed trustees retained possession. A breach
sion by Hiirh
Court. of the peace having become imminent in the opinion of a Deputy Magistrate,
he made an order under Criminal Procedure Code, 1882, section 144, directing
the newly-appointed trustees not to interfere with the temple or its manage
ment. Held, that the High Court had no power to interfere in revision under
the Code, section 435 Palaniappa Chetli v Dorasanti Ayyar, I. L. R., 18
Mad., 402 (1895).
prohibit- An order forbidding a person who claimed an interest in certain proper-
o"*reCnts-Tem- "es ^x.on} co"oct'nS tt">" rent from the ryots on the properties, docs not
pornry orders fall within section 114 of the Code of Criminal Procedure, 1882 Such an
in argent crises order is therefore made without jurisdiction, and may be set aside under the
PoweTof'revi- ^'S1' Court's powers of revision and superintendence conferred by section 439
sion and super- of the Code and section 15 of the Charter Act. Chapter XI of the Code
theeHiSi Ooii'rt. rofors to interference or dealing of some kind with the land itself, or with
' something erected or standing upon it, and is directed to the prevention or
direction by prompt order of some definite act on the part of an individual
so that injury or nuisance may not be caused. Anaiida Chandra Bhuttachar-
jee v. Carr Stephen, I. L. If., 19 Cal., 127 (1891).
Refonnnlory A Magistrate, acting under section 8 of the Reformatory Schools Act (V
J^hrol»^Miiftl«- 0f 1870), (1) is bound to ascertain the age of the prisouer, and, in accordance
n™«rtnin "t'iie'0 with that finding, to direct the confinement in a reformatory according to the
prisoner's nee— rules made under section 22 of the Act. It is not sufficient for the Magis-
JmnSl'nnro- trate merely to find that the prisoner is un ler a particular age. Under sec-
— cecdinir—Hifch tion 8 of the Act, evidence may be taken by the Magistrate as to the age of
o^revisin^siTh ''lc P"80ncr i an(' ilH t'ie proceeding of the Magistrate involves the alteration
prixcedVn^.*"0 ' of a sentence after the exorcise of judicial discretion, such proceeding is
clearly a judicial proceeding within the meaning of sections 4 anil 435 of
the Code of Criminal Procedure, 1882. The High Court is, therefore, com
petent to exercise its rovisional jurisdiction in such cases. Queen-Empress v.
Manaji, I. L. R., 14 Bom., 381 (1889).
Superintend- A Deputy Commissioner passed an order, under section 144 of the Code of
pnce -iViirt'*'1 Criminal Procedure, 1882, prohibiting a person from collecting any rent or
abstain from attempting to collect rent, either herself or through any of her officers or
certain act. servants, from the ryots of two specified pergunnahs ; and also from effect
ing any sale or putting in hand any transaction with regard to standing trees
or collec ted timbers in an estate, or erecting any wltln or leuchari in such
pergunnahs for a period of two months. Upon an application to set aside
such order : Held, that the High Court had jurisdiction, under section
15 of the Charter Act, to set it aside if it were made without jurisdiction.
Held, further, that the acts which the petitioner was directed to abstain from
were not acts which conic within the meaning of the winds " a certain act "
as used in section 144 of the Code, and that the older should beset aside.
Ahayeswari Debi v. Sidheswari Debi, I. L. R., 10 Cal., 80 (1888).
S. 435.1 Of Appeal Reference, etc. 469
On the 29th December, 1887, tlie accused, a police-constable, was on Act done by a
duty at a temporary post near the Arthur Crawford Market. His turn of PeJfson,b/T
jduty
i 1lasted
l 1 *from 41 Sto n7 A. M. n i
Between o on and1 n7 A. M., 1-he saw iu
6-30 \MM Offaith
the com- ^cod fact be-
ltl
pluinant carrying under his arm three pieces of cloth. Suspecting that the !ievi."K \1)im1^J
cloth was stolen property, he went up to the complainant and questioned ^f^'sonao'le'*"
him. In answer to one of the questions the complainant stated that the cloth suspicion—
was made in England. The accused, noticing that each piece bore Gujrathi "^"ire-office?
marks, and not knowing that such marks are placed on English-made goods, while acting in
concluded that this statement was false, and that the cloth had been stolen. He 9*?c^n °f
took hold of one of the pieces of the cloth in order to examine it more closely. u } rros '
The complainant objected to this, and there was a scuflle between them for
the possession of the cloth The accused then arrested the complainant and
took him to a European inspector, to whom he stated the facts, alleging that
he had arrested the complainant because he had assaulted him. The inspec
tor, seeing that the complainant was an old man, and on the accused saying
he was not hurt, let the complainant go. The complainant then lodged a
complaint before the Acting Chief Presidency Magistrate, charging the ac
cused with wrongful restraint and wrongful confinement —offcuccs punishable
under sections 341 and 342, respectively, of the Penal Code. The defence
was that the complainant had assaulted the accused, and had been on that
account arrested and kept in confinement until released by the inspector of
police. The Magistrate found that there was no justification for the suspi
cion which the accused professed to entertain : that there were no reasonable
grounds for questioning the complainant about the cloth in bis possession ;
and that the scufHo was caused solely by the action of the accused in treating
the complainant, without any valid reason, as a suspected thief. The Magis
trate convicted the accused of wrongful confinement under section 342 of the
Penal Code and sentenced him to four mouths' rigorous imprisonment.
Held by the High Court, that the conviction was wrong. The accused hav
ing, under the circumstances of the case, an honest suspicion that the cloth
in the possession of the complainant was stolen property, was justified in
putting questions to the complainant the answers to which might clear away
his suspicions, and having received answers which were not, in his opinion,
satisfactory, he acted under a hmA fide belief that he was legally justified in
detaining what he suspected to be stolen property. The putting of questions
to the complainant, not for the purpose of causing annoyance or from idle
curiosity, but in order to clear up his suspicions, was an indication of good
faith, as defined in section 52 ot the Penal Code. He was, therefore, pro
tected by section 79 of the Code. Even though the act of the accused in
detaining the cloth might not have been strictly justifiable by law—that is,
even though there might not have been a complete basis of fact to justify a
reasonable suspicion that the cloth was stolen property—still the complainant
had no right of private defence under section 99 of the Code, as the accused
was a public servant acting in good faith under colour of his office, and his
act was not one which caused the apprehension of death or of grievous hurt.
The complainant was not justified in refusing to allow the accused to inspect
the cloth in snatching it from his hands and in scuffling with him. He was
therefore legally arrested under section 54, clause 5 of the Criminal Pro
cedure Code, 1882. for obstructing a police-officer while acting in the execution
of his duty. Held, also, that the High Court will exercise its powers under
sections 435 and 439 in the interests of justice, in exceptional cases, as where
the enquiry in the lower Court has been faulty. Bhawoo Jivaji v. Mulii
Dayal, I. L. H., 12 Bom., 377 (1888).
The High Court will not entertain an application for revision in case Beyiiion by th*
where the District Court or Magistrate has concurrent revisional jurisdiction R^sionUwhera
w ith the High Court save on some special ground shown, unless a previous lowor Court has
application shall have been made to the lower Coourt ; but in cases in which "•""""rent ju-
concurrent jurisdiction is not possessed by the lower Courts, no such general Sigh Court"1
rule exists. The Queen-Empress v. Reolah, I. L. It., 14 Cal., 887 (1887J.
470 Of Appeal, Reference, etc. [Ch. XXXII.
Magistrate of A Magistrate of a district is competent, under section 435 of the Criminal

powers^?'' Procedure Code, 1882, to call for and deal with the record of any proceeding
before any Magistrate of whatever class in his own district. Opendro Nath
Ghoee v. Dukhini Beu-a, I. L. R., 12 Gal., 473 (1886).
First-clam Ha- A Magistrate of the Bret-class is, within the meaning of section 437 of
ordmato" 7*' the Criminal Procedure Code, 1882, " subordinate" to the Magistrate of the
Magistrate of district, who is therefore competent to call for the record of the former, and
district. j0 ,jeai wjt|, ;t um]er section 437. Queen-Empress v. Laskari, I. L. R., 7 All..
853 (1885).
trate-Pow^?'Si Un(ler section 435 of the Code of Criminal Procedure, 1882, a District
revise proceed- Magistrate has power to call for and examine the record of a proceeding
inga of Sub- before a Sub-Divisional Magistrate of the tirst-class. In re Padmauabha, I.
^rl'rof?h,eL.R,8Mad.,18 (1884).
flrat-claw. A Sub-Divisional Magistrate, after perusing the calendar of a case tried
Sanction to pro- by a Magistrate subordinate to him, sent for the record, and passed an order
j^y mSelbv Under Bection 195 o£ tlie Code of Criminal Procedure, 1882, sanctioning the
Magistrate on prosecution of a witness in the case for perjury. Held, that the order was
revising calon- illegal. The Queen-Er»j>res8 v. Kuppu, I. L. R., 7 Mad., 560 (1884).
A joint Sessions Judge cannot exercise the powers of the Sessions Judge
MaBbtraô* under Chapter XXX[I of the Criminal Procedure Code, 1882. Accordingly,
wer of joint Ses- where a Magistrate had discharged certain accused persons, and the joint Ses
sion! Judge to sions Judge had subsequently, on the application of the complainant, ordered
^mc commit- tnejr COiiitnitta] to the Sessions Court, the High Court set aside the proceedings
of the joint Sessions Judge, leaving it to the Sessions Judge of the district, if
a proper case was made out, to order a committal, or dispose of the applica
tion as he might think fit. In re ilusa Asmal, I. L. R., 9 Bom., 164 (1884).
The District The Court of a Magistrate of the first-class is inferior and subordinate
per?oritvte'of!11" to tnat o£ ^lP> District Magistrate, section 17 of the Criminal Procedure Code,
io the first- ' 1882, expressly providing that all Magistrates of whatever class shall be sub-
—o*der*?)vt,the or('inate t0 tne District Magistrate. The District Magistrate is superior, in
District Magis- respect of executive as well as judicial functions, to all other Magistrates,
trate under Where a Magistrate of the first-class discharged, under section 209 of tho
cormuittaTof0! Code, a person charged with an offence exclusively triable by the Court of
person dig- Session, and the District Magistrate directed him under section 430 to coui-
first'das!^ *'ie accuse(^ '° 'he Court of Session, and a commitment was made, but the
Magistrate Sessions Judge referred the case, under section 215, for the orders of the High
Court: Held, that the order of the District Magistrate under section 436 was
not uZfra vires, and that the commitment thereunder to the Court of Session
was good, and could not be quashed under section 215. The term ' ' inferior "
as used in the Code means statutably incompetent to hold or exercise equal
powers, and carries with it the idea of subordination, which latter means " in
ferior in rank." Queen-Empress v. Pirya Gopal, I. L. ]{., 9 Bom., 100(1884).
charge at trial— A was tried on a charge (1) of murder, (2) of abetting B to commit the
Altering ch-jiye said murder. The jury, having considered their verdict, were asked by the
c^cbiiri'.—io" Clerk of the Crown if they were agreed. The foreman replied that they were,
Omission to and that their verdict was guilty, and when further asked, he said " guilty of
read and ex- abetment—of abetment generally." On the application of counsel for the pro-
prisoner-'per-0 8ecution, a charge was then added of " abetment of murder committed by
■on committed some person or persons unknown." The additional charge was read aloud
char'o0" 'und to
section «26of8r *'letojury)
upon huttowas
plead it. not specially
Counsel for explained
the prisonerto was
the asked
prisoner,
by nor
the was he called
Judge if he
Criminal Hroce- desired to have a new trial on the charge as amended, but he declined. The
MewiingoT the three charges, {i.e., the two original charges and the additional charge) were
word "alter" in then read te the jury, who, after deliberation, returned a verdict of " not guil-
Meaning ofThe " on charges Nos. 1 and 2, and of " guilty on charge No. 3, viz., of abet-
words •■ return ment of murder by a certain person or persons unknown. " On the application
of verdict " in 0f counsel for the prisoner, the following points were reserved ;—(1) whether,
S. 43 5.J Of Appeal, Reference, etc. 471
under the circumstances, the Court had power to add a new cliarge ; (2) whe- section 227—
tlier the verdict returned on the new cliarge was valid, the prisoner not having Reference and
been called on to plead to it. Held (Scott, J., disserting), that the Judge was ™vision' Co™
wrong in framing a new cliarge iu addition to the original charges. The
error, however, was one of form, and not of substance, and under 1 section 537
of the Criminal Procedure Code, 1882, the Court declined to interfere with
the conviction. Held, also, that the power exercised by a Court sitting as a
Court to decide questions of law reserved in criminal cases under section 434
of the Code is the power of review, and the Court is a Court of Reference and
Revision. Held, also, that, having regard to sections 228, 229, and 230 of the
Code, the charge of abetment of murder by H might have been changed into
One of abetment generally. Held, also, that in any case the conviction was good
under sections 236 and 237 of the Code. It was doubtful whether the evidence
would establish the oft'enco of murder, abetment of murder by B, or abetment
of murder by some one unknown. Even if there had been no cliarge properly
framed the Judge might, under section 237, have accepted the verdict returned
minal Procedure Code generally the word " charge is used as the statement
of a specific offence and not as indicating the entire series of offences of which
a prisoner is accused. There is nothing in the Code to indicate that tlio word is to
have a different construction in sections 226 and 227 from what it has in other
sections The words 11 without charge," in section 226 of the Code, will
probably apply not only to a case in which there is no charge at all,
but also to a case in which there is no cliarge of such an offence as
the Sessions Judge or Clerk of the Crown may think the prisoner ought
to be tried for. If the word "alter" in section 227 is to be taken to
include " addition," as it does in section 226, the addition permitted must be
an addition to some specific charge iu the nature of an alteration, and not the
addition of a new charge The words " return of the verdict " in section 227
mean the return of the final verdict which the Judge is bound to record.
Where, on the application of counsel for the prisoner, a question of law has
been reserved for the decision of the Court under section 434 of the Code, the
prisoner's counsel has the right to begin. Per Scott, J.—The test of the ad
missibility of proposed amendments to a charge is whether such amendment
will prejudice the prisoner. The word " charge " is used in the Code both as
indicating the whole series of counts or heads of charge, and also as indicating
a charge of one specific offence ; in section 227 it is used in the former sense.
The word " alter" in section 227 must betaken to be equivalent to the words
" add to or otherwise alter " which are used in section 226, and, consequently,
the addition of a new " head of charge " is an alteration within the meaning
of section 227. Queen-Empress v. Api>a Subhaua Metulre, I. L. R., 8 Bom.,
200 (1884).
Section 25 of the Indian Evidence Act (I of 1872) does not preclude one pow6rof the
accused person from proving a confession made to a police-officer by another Hinh Court on
accused person tried jointly with him. Such a confession is not to be receiv- re8^rye\i°t'01con-
ed, or treated, as evidence against the person making it, but simply as evid- sidor the merits
ence on behalf of the other. The High Court, on a point of law, as to the 0' the case-
admissibility of rejected evidence, reserved under clause 25 of the Letters
Patent, 1805, and section 101 of the High Court's Criminal Procedure Act (X
of 1875), has power to review the whole case, and determine whether the
admission of the rejected evidence would have affected the result of the trial,
and a conviction should not be reversed unless the admission of the rejected
evidence ought to havo varied the result of the trial (Indian Evidence Act,
section 167). IniperatrU v. 2 Bom., 61 (1877).
Revision- In a case of apprehended breach of peace the Magistrate bound over the
Court"-"' ltt!'te- Parties in sums of money aggregating on the whole to Us. G0,000 or upwards.
rial error "- The High Court quashed the order, holding that it was altogether unreasonable.
»S|te>!,m,rel>' Fer Markby> J —Sections 294 and 297 of the Code of Criminal Procedure,
1872, do not debar the High Court from interfering where, in cases requiring
the exercise of discretion, it appears upon the face of the proceedings that the
Magistrate has exercised no discretion at all, or has exercised his discretion in
a manner wholly unreasonable. Per Mitter, J.—Under.section 297, the High
Court has the power of interfering with judgments, sentences, or orders of
Courts subordinate to it, if t! ore has boon a material error in any judicial pro
ceeding of such Courts, meaning thereby any error appearing on the face of a
judicial proceeding resulting in an unjust order. In re Juggut Chmider Chuc-
kerbutly, I. L. R., 2 Cal., 110 (1876).
Irregularities.— The jailor of a district jail being accused by one of the jail clerks of
Sfprisoncr-6' falsifying his accounts and defrauding the Government, the matter was en-
Ui»o,uiilif.yiiis quired into by the District Magistrate, and the jailor was, by the Magistrate's
yitercatôf order, placed on trial before a Bench of Magistrates, consisting of the Dis-
KmiiKcvUl>-ii e. trict Magistrate himself, L, the officiating superintendant of the jail, and
three other Honorary Magistrates. The prisoner and his pleaders were alleged
to have stated before the commencement of the trial on being questioned that
they had no objection to the composition of the Bench, but after the charges
had been framed, the prisoner's counsel objected to the Bench as formed.
The District Magistrate directed the Government pleader to prosecute, and
both the District Magistrate and L gave evidence for the prosecution. After
the case for the prosecution was closed, two formal charges were drawn up,
namely, that the prisoner had debited Government with the price of more
oil-seed than he actually purchased, and that he had received payment for cer
tain oil at a higher rate than he credited to Government. The moneys, the
receipt of which were the subject of the first charge, were obtained by the
prisoner on the strength of certain vouchers which ho had induced L to sign
as correct, and L had sanctioned the sale at the rates credited to Government.
Upon the prisoner's giving the names of the witnesses he intended to call in
his defence, L was deputed by bis brother Magistrates to examine some of
them who were connected with the jail, in order " to guard against devia
tion," and the depositions bo taken were placed on the record, " to be used
by either party, though not themselves as evidence." The prisoner was con
victed. On a motion to quash the conviction : Held, that L had a distinct and
substantial interest which disqualified him from acting as Judge. Held, fur
ther, that although a Magistrate is not disqualified from dealing with a case
judicially merely because in his character of Magistrate it may have been his
duty to initiate the proceedings, yet a Magistrate ought not to act judicially
in a case whore there is no necessity for his doing so, and where he himself
discovered the offence and initiated the prosecution, and where he is one of
the principal witnesses for the prosecution Held, further, that the recording
the statements of the prisoner's witnesses was irregular. Criminal proceedings
are bad unless they are conducted in the manner proscribed by law, and if they
are substantially bad, the defect will not be cured by any waiver or consent
of the prisoner. The Queen v. Bholanath Sen, I. L. It , 2 Cal., 23 (187G).
Power to order 436. AVhen, on examining the record of any case under
commitment.! sectjon 4,35 or otherwise, the Sessions Judge or District Magis
trate considers that such case is triable exclusively by the Court
of Session and that an accused person has been improperly dis
charged by the inferior Court, the Sessions Judge or District
Magistrate may cause him to be arrested, and may thereupon,
instead of directing a fresh inquiry, order him to be committed
S. 436.] Of Appeal^ Reference, etc. 473
for trial upon the matter of which he has heen, in the opinion
of the Sessions Judge or District Magistrate, improperly dis
charged :
(a) that the accused has had an opportunity of showing
cause to such Judge or Magistrate why the commit
ment should not be made ;
(b) that, if such Judge or Magistrate thinks that the

evidence shows that some other offence has been com
mitted by the accused, such Judge or Magistrate may
direct the inferior Court to inquire into such offence.
A complaint was made before a Magistrate, which involved a charge of Sessions Judge,
dacoity against the accused person and others. The Magistrate in dealing Jjôn-turtlier
with the case proceeded under section 209 of the Code of Criminal Procedure, enquiry, powar
1882, and finding no case of dacoity prima facie established, proceeded to j' j^T'Vr t
frame charges under section 254 or the Code, charging the accused with " 'r0C '
offences under sections 380 and 448 of the Penal Code, viz., theft in a build
ing and criminal trespass. Having heard the whole of the evidence, ho then
acquitted the accused under section 258 of the Code, and gave him sanction
under section 195 to prosecute the complainant under section 211 of the
Penal Code. The complainant then applied to the Sessions Judge to revoke
that sanction. The Sessions Judge proceeded to consider the whole case, and
finding that a proper enquiry had not been made and all evidence available
not taken, and that had this been otherwise, a sessions case might have been
established, directed the Magistrate to hold a further enquiry, and to proceed
in accordance with the result of such enquiry, either to commit the accused to
the Sessions, or grant the sanction, as the case might be. Held, that the
Sessions Judge had exercised a jurisdiction not vested in him by law. Acting
as a Revision Court, he could send for the record for any purpose mentioned
in section 43G, but he was not competent under section 436 to direct a fresh
enquiry, inasmuch as the accused had not been improperly discharged of an
offence triable exclusively by a Court of Sessions, but had been acquitted of
an offence within the Magistrate's jurisdiction The Sessions Judge had, in
fact, exercised the jurisdiction vested in him as an appellate Court under
section 423, as if an appeal had been presented to him from an order of
acquittal ; such powers in revision cases are only conferred on the High
Court. Jiaijanalh Pandey v. Gauri Kanla Mandal, I. L. 11., 20 Cat., 033
(1893).
It is competent to a District Magistrate, who has issued a notice to an District Magis-
accused person who, in his opinion, has been improperly discharged to show l™ ^' OTder'fur-
cause, under section 436 of the Criminal Procedure Code, 1882, why he should th'erenquiry.
not be committed to the Court of Sessions, on cause being shown to order a
further enquiry under the provisions of section 437. Qiieeii-Enq/ress v, Manir-
udditt Mundul, I. L. R., 18 Cal., 75 (1890).
The High Court has power, under section 439 of the Code of Criminal Hinh Court's
Procedure, 1882, if it considers that an accused person has been improperly Improper
discharged, to order him to be committed for trial. Empress v. Ram Lai nischwue °'
Singh, I. L. R., 6 All., 40 (1888).
Power of tho In cases exclusively triable by tbe Court of Session, section 436 of the
•ion'to °'oimiiit ^'°ê of Criminal Procedure, .1882, empowers the Court of Session or District
a dischiinteil Magistrate to order a discliurged person to be committed for trial by such
person lor trial Court. There is nothing in that section to show that, when such order is
tervc°itbn'Cof'n ma<le, the commitment thereupon must necessarily be made by the Magistrate
Mneistratc. who has discharged him, whilst the first proviso to it shows that it may bo
made by the Court of Session or by the District Magistrate according as the
power under that section happens to bo exercised by one or the other. A
Court of Session may try a prisoner so committed and charged by itself. It
is an established rule of practice that the accomplice must be corroborated by
, independent evidence as to the identity of every person whom he impeaches.
Queen-Empress v. Krishnabhat, I. L. ft., 10 Bom., 319 (1886).
Order of com- ^ Sessions Court has no power, under section 296 of the Code of Crimi-
mitment bySes- nal Procedure, 1872, to direct the commitment of a person discharged by a
■ions Judie Deputy Magistrate, without first giving such person an opportunity of show-
onwcuwJ to cause against such commitment. But under section 296, as amended by
show cause Act XI of 1874, the Court has power to direct the subordinate Court to en-
"onimitinont1011 flmre 'n'° any offences for which it considers a commitment should be ordered.
When, however, a trial under such commitment made by order of a Sessions
Judge has been duly held, and no actual failure of justice has been caused
by the error of the Sessions Judge, section 283 of the Criminal Procedure
Code would be a bar to the reversal of his judgment. The Empress v. Khumir,
I. L. B., 7 CaL, 662 (1881).
Enquiry into Held, where a Magistrate had tried a case exclusively triable by a Court
nf'sesMoii—°"rt °^ S688'011) am' 'ne conviction of the accused person and the sentence passed
Commitment, upon him at such trial were for that reason annulled by the Court of Session,
but the proceedings held at such trial were not annulled, that such Magistrate
might commit tho accused person to the Court of Session on the evidence
given before him ut such trial. Empress of India v. Ilahi Baksk, I. L. K., 2
All., 910 (1880).
Dischninc of A Deputy Magistrate having dismissed a case instituted under section 380
dic"ionÊe»i-S" ^cna' ^°de without taking certain evidence which, in his opinion,
ral of proceed- would have been of little value, the Magistrate of the district, on the appli-
'"!?»• cation of the complainant, took such evidence, and committed the accused for
trial before the Sessions Court. Held, on reference to the High Court, that as
the words " Sessions case " in section 296 of the Code of Criminal Procedure,
1872, have reference only to a case triable exclusively by a Court of Session,
the Magistrate's action could not be supported under that section, but that (as
further evidence in addition to that taken by the Deputy Magistrate was forth
coming) it was sustainable on the principle laid down in Empress v. Donnelly
(I. L. B., 2 CaL, p. 212). The Empress v. Hary Doyal Karmolcar, I. L. B., 4
CaL, 16 (1878).
Discharge of It is illegal and ultra vires on the part of the Magistrate to revive before
vat of^-Eeed" n'mse'f criminal proceedings against an accused who has already been dis-
i,1|t< charged under section 215 of the Code of Criminal Procedure, 1872, where no
further evidence is procurable than that which was before the Court on the
first occasion. Per Markby, J.—When the discharge has been improper, the
only proper course open to a Magistrate is to report the case to the High Court
for orders, and that Court, if of opinion that the accused has been improperly
discharged, will order a re-trial. Per curiam.—A Magistrate cannot himself
be a witness in a case in which he is the sole judge of law and fact. Per
Markhy, J. - Where in such a case he has given his evidence and convicted the
accused, his having so acted makes the conviction bad. Per Pkinsep, J. - The
conviction is not absolutely bad. It is open to the Court to uphold conviction
if it is of opinion that, after rejecting the Magistrate's evidence, there is other
evidence sufficient, if believed, to support the conviction. This being a pro
ceeding under section 297 of the Code of Criminal Procedure, 1872, the Court
refused to go into the evidence. The Empress v. Donnelly, I. L. R., 2 Cal.,
405 (.1877). *
Before a Court of Session can, under section 296 of the Code of Crimi- Order directing
nal Procedure, 1872, direct a Magistrate to commit the accused in a "Sessions comm,tment-
case " which has been improperly dismissed under section 147, it is bound to
give the accused person notice of the application for such an order, so that ho
may show cause why it should not be passed. In re Dwarkanath Bhutta-
charjea, 1 Cal. L. R., 93 (1877).
The appellant after his discharge by the Assistant Magistrate, upon a Definition of
charge under section 457 of the Penal Code, was committed to the Court of Sessions ense—
Session by order of the Sessions Judge under the Criminal Procedure Code, Som Courtf"
1872, section 296, upon charges under sections 380 and 457 of the Penal Code.
Held by the Full Bench (Spankik and Oldi'ield, JJ., dissenting), that the com
mittal was illegal, and that " Sessions case " within the meaning of section
296 of the Code is a case exclusively triable by the Court of Session. The
Empress 0/ India v. Kanchan Sing, I. L. It., 1 All., 413 (1877).
An order of commitment by a Sessions Judge under section 296 of the Commitment-

Code of Criminal Procedure, 1872, is not in form, if it does not specify the Sessions Judge,
offence for which the parties are to be committed for trial to the Sessions. A
trial for the offence of cheating is not a Sessions case within the meaning of
section 296, having regard to the first portion of the definition of Sessions
case in section 4 of the Code, which must be read as if the word " only "
followed the words " triable by a Court of Session." Joy Kuril Singh v. Man
Patuck, 21 W. R., 41 (1874).
In a case in which the accused was charged under section 200, Penal Autrefois aniuit
Code, of the offence of using as true a false declaration which by law is re- Z^™"^"ieut
ceivable as evidence, the Magistrate, after taking evidence, discharged the judge,
accused, as he was of opinion that the charge w as not made out, and that the
evidence did not justify his framing any other charge against the accused.
The Sessions Judge, acting under section 296 of the Criminal Procedure Code,
then directed the Magistrate to commit the accused for trial for forgery.
Held, that the Sessions Judge's order was bad, (1) because it was too vague
and indefinite, as it did not specify the document which was forged and the
particular in regard to which it was forged ; and (2) because it directed the
committal of the accused of an offence with which he had not been in any
form accused before the Magistrate—section 296 of the Code of Criminal Pro
cedure, 1872, empowering the Sessions Judge to direct a commitment only for
some offence with which the accused was substantially charged in the com
plaint or which was specified in the warrant, or which was framed as a formal
charge by the Magistrate at the preliminary hearing, lhe Queen v. Taruck
Nath Mookerjee, 19 W. R. 30 (1873.)
437. On examninig any record under section 435 or other- Power to order
wise, the High Court or the Sessions J udge may direct the Dis- ",qmrT-
trict Magistrate by himself or by any of the Magistrates subordi
nate to him to make, and the District Magistrate nr.ty himself
make, direct any subordinate Magistrate to make, further in
quiry into any complaint which has been dismissed under section
203 or sub-section (3) of section 204, or into the case of any accus
ed person who has been discharged.
476 Of Appeal Reference, etc. [Ch. XXXII.
Obstruction to In a complaint for alleged obstruction of a public thoroughfare, the Magis-

KJ0>B° — tlate! af,er making preliminary enquiries, was of opinion that the alleged way
further enquT was not a public thoroughfare, and refused to take action under section 133,
rj. • Act X of 1882. The Sessions Judge, being of opinion that the Magistrate
should have gone on with the ease, directed a further enquiry under section
133. Such enquiry was held, and the Magistrate, without taking evidence in
support of the complaint, made bis conditional order under section 133 absolute
under section 137. Held, that the order of Sessions Judge, directing a fur
ther enquiry, was ultra vires, there being no section of the Code under which
an order for further enquiry could be made in the case, section 437 having no
application. Yield, also, that the Magistrate, before whom the petitioner
showed cause, should not have made his conditional order under section t33
absolute without taking evidence upon the matter of the complaint ; the words
" evidence in the matter" meaning " in the matter of the complaint," and not
simply evidence which the opposite party might offer. Srinath Roy v. Ainad-
di Haider, I. L. R., 24 Cal., 395 (1897).
Dismissal cf Where an original complaint is dismissed under section 203 of Act X of
complaint- Re- 1882, a fresh complaint on the same facts before the same Magistrate cannot
in k °—fTniii" 'i0 entertained so long as the order of dismissal is not set aside by acoinpetent
disposal of caac authority. Komul Chandra Pal v. Gour Chand Audhikuri, I. L. B., 24 Cal.,
-Want of juris- ^SG (1897).
diction. v '
Sanction to pro- The complainant was directed to pay Us. 50 as compensation to the ac-
s e c u t e and cused, or, in default, to suffer simple imprisonment for one mouth, under see-
pTns'Sion-Im- til,» 5u0 o£ tlie Code of Criminal Procedure, 1882, and sanction was also grant-
prisonracnt in o.l to prosecute him for offences under sections 211 and 11)3 of the Penal Code.
ra<"fnt1of0comy"n- #«W,that if the Magistrate thought that this was a case in which a prosecu-
Htion0 C0U11,011 tion under sections 211 and 11)3 of the Penal Code should be sanctioned, he
ought not to have taken action under the provisions of section 5G0 of the
Code. Held, also, that the order for imprisonment in default of payment of
the compensation awarded was illegal. Shibitath Chong v. Sarat Chimder
Sarkar, 1. L. It., 22 Cal., 680 (1895).
Power of the Both the Sessions Judge and the District Magistrate are competent, under
totaterfeiiwIS! »ectiou 437 ?£ tlle Criminal Procedure Code, 1882, to order a further enquiry ;
orders passed liy but the Sessions Judge has t.o jurisdiction to review an order made by the
'îrate-Freî* District Magistrate under that section refusing a further enquiry. It is open to
unction, Jrraut l'ie Sessions Judge to refer the matter to the High Court under section 438.
of.after expiry of If six months expire after the grant of sanction under section 195 of the Code
the date'of'The iHM' n0 Pr<)secu'ion is commenced under it within that time, it is open to the
first sanction. prosecutor to procure a fresh sanction and to institute proceedings upon such
fresh sanction. The words "six months from the date on which the sanction
was given " must be taken to mean six months from the date on which it was
given in the first instance, and not from any subsequent date on which the
purport of the order might have been repeated. The Munsif, who tried
the suit out of which the application for sanction arose, refused to sanction
any prosecution; the Munsif, who originally sanctioned the prosecution, was
a different olficer ; while the Munsif who gave the iresh sanction was neither
the Munsif who tried the ease nor the Munsif who sanctioned the prosecution
originally. Semite.—-Under these circumstances it is extremely doubtful whe
ther the sanction was such as is contemplated by section 195 of the Criminal
Procedure Code, 1882. Darbari Mandar v. Jaqno Lai, I. L. R 22 Cal. 573
(1895). ' '
Further enquiry A District Magistrate who refers a ease to a Sub-Magistrate for further en-
-Powor of ois- quiry has no authority to fetter him in the exercise of his judicial discretion as
toCsu(tKettStrlC t0 tlie tIue,,tion whether the case should or should not be committed to the
committal. Court of Sessions. Queen-Empress v. Munitami, I. L. R., 15 Mad., 39 (1891)
It is competent to a Sessions Judge acting under the Criminal Procedure "Further cn-
Code, 1882,
evidence is notsection 437, to direct
forthcoming. further enquiry
Queen-Empress to he held where
v. lialasiniiatambi, I. additional
L. R., 14 ^'[J]
JjUIJ" )url 1C"
Mad., 334 (1890).
Where a Sessions Judge has passed orders under section 437 of the ReVision_or-
Criminal Procedure Code, 1882, a District Magistrate acting under the derof Session!
section should not pass orders of a contrary kind, but if he thinks that '"dire rejecting
the Judge's orders were wrong, he should submit them to the High Court tier section 4S7
through the medium of the Public Prosecutor. Where a Sessions Judge had, -Subsequent
under section 437 of the Criminal Procedure Code, 1882, refused to order M^rate*'™'
further enquiry into the case of an accused person who had been discharged, granting siini-
the High Court set aside a subsequent order of the Magistrate of the district lar application,
passed under the section and ordering further enquiry into the same case.
Queen-Empress v. Pirthi, I. L. B., 12 All., 434 (188!)).
No notice to an accused person is necessary in point of law before an Further en-
order under section 437 can be passed ; hut, as a matter of discretion, it is pro- {1"jr^~^Jjli?°
per that such notice should he given. Held by the majority of the Pull Dischargo by
Bench (Pbinsep, Wilson, Tottenham, Norms, Pioot, and O'Kinkai.lt, JJ).— Magistrate.
After an enquiry by a subordinate Magistrate and the discharge of an accused
person a Sessions Judge or Magistrate has jurisdiction, under section 437 of
the Code of Criminal Procedure, 1882, to order a " further enquiry " or a
re-hearing upon the same materials which were before the subordinate Magis
trate, /'. e., when no further evidence is forthcoming. But (Prixsep, J., dis
senting) the words " further enquiry " in that section mean the enquiry
preliminary to trial which regularly results in a charge or discharge, and do
not include the trial: and if on the evidence taken the accused ought to be
committed, then, in a case triable only at the Sessions, the proper course is to
commit under section 436' ; in other cases, to refer to the High Court. Per
PRixsKr, J.—The word " enquiry " include a trial, and the " further enquiry "
would therefore allow of the framing of a charge, and the cross-examination of
witnesses for the prosecution. Per Petheram, C. J., and Qhosk, J.—The power
given by section 437 of the Code to order a further enquiry is confined to
cases in which the revising ollicer is satisfied, for one of the reasons men
tioned in section 435, that the subordinate officer has proceeded on insuffi
cient materials, and that with a more exhaustive enquiry further materials
would be forthcoming. It was not intended that such an enquiry should be
granted simply for the reconsideration of evidence. In re Hurt Dass Sanyul
v. Tarittdla, I. L. R., 15 Cal., (F. B.) 008 (1888.).
Malice is not an essential ingredient in the offence of wrongful confine- Further enquiry
ment as defined by section 340 of the Penal Code. The offence is complete ,7^™"^' c0""
when a person is wrongfully restrained in such a manner as to be prevented Wrongful res-
from proceeding beyond certain circumscribing limits. And a person is traint—Malice,
wrongfully restrained when he is voluntarily obstructed, so as to be prevented
from proceeding in any direction in which he has a right to proceed. The
accused as abkari inspector visited a toddy-shop where the complainant and
one Dhanjibhai were employed as agents for the sale of toddy. Having rea
son to suspect that an offence under the Abkari Act (Bom. Act V of 1878)
had been committed, the accused made an enquiry, in the course of which the
complainant made certain statements implicating his fellow-servant. The
accused thereupon resolve! to prosecute Dhanjibhai, and make the complain
ant a witness in the case. In order to prevent him being tutored, the ac
cused ordered his sepoy to bring the complainant to his camp, and there
detained him during the night, and on the following morning sent him in
charge of a sepoy to a Magistrate's Court, where the complainant repeated
the statements made by him before the accused. He was then allowed to go
away. The accused prosecuted Dhanjibhai, and in the course of his trial
478 Of Appeal, Reference, etc, [Ch. XXXI I.
admitted in his deposition that lie had ordered his sepoy to bring the complain
ant to his camp, and had detained him there during the night. After the
termination of Dhanjibhai's trial, the complainant charged the accused with
wrongful confinement 'under section 342 of the Penal Code. The accused
pleaded that the complainant had voluntarily come to his tent to have his
statements reduced into writing, and that he had of his own accord stopped
in his camp during the night. The trying Magistrate held this plea proved,
and discharged the accused under section 253 of the Code. The Sessions Judge
held that, though the accused had detained the complainant in his camp dur
ing the night, still he was not guilty of any offence under the Penal Code,
as he had acted without malice and to the best of his judgment. He there
fore declined to interfere, or order any further enquiry. Held, by the High
Court on revision, that the trying Magistrate had wrongly omitted to take
into consideration the admissions made by the accused in his deposition in
Dhanjibhai's case. Those admissions had an important bearing on the pre
sent case. They were admissible in evidence against the accused, and, as
they were left out of consideration, the enquiry was necessarily incomplete
unci imperfect. Further enquiry was therefore ordered. The mere circum
stance that the accused had acted without malice and to the best of his judg
ment did not protect him, if his act otherwise satisfied the definitions of
section 340 of the Penal Code. Dhauia v. F. L. Clifford, I. L. R., 13 Bom..
376(1888).
Inference by A District Magistrate who considers that there has been a miscarriage of
trateof pro- S" justice in the Court of Session, should not report the case to the High Court
ceedings of for orders under section 438 of the Code of Criminal Procedure, 1882, but
Sessions Judge. 8uollld communicate with the Public Prosecutor as to the case in which he
thinks such miscarriage has occurred, and invite his assistance to move the
Court with regard to it. Queen-Empress v. Shere Shu/h, I. L. B., 9 All., 362
(1887).
Further enquiry A Sessions Judge, after hearing a general statement made by a Mooktear
and order of engaged in the case, considered that the depositions of certain witnesses
passed'lJinml- taken in the Magistrate's Court did not conform with the requirements of sec-
toneously by tion 360 of the Code of Criminal Procedure, 1882, and refused to admit the
Sessions Judge, depositions as evidence, and also refused to allow oral evidence to be given
as to the statements made by these witnesses. No objection was taken to the
admission of these depositions on behalf of the Crown ; the accused were
eventually convicted and sentenced to rigorous imprisonment. Held on appeal
that the conviction and sentence must be set aside Adyun Singh, v. Qiietn-
Empress, I. L. B., 13 Cal., 121 (1886).
Powers of Dis- ^ Magistrate of a district is competent, under section 435 of the Code of
tricl Magistrate. Criminal Procedure, 1882, to call for and deal with the record of any proceed
ing before any Magistrate of whatever class in his own district. Ojtendro
Natli Ghose v. Dukhini Jietva, I. L. B., 12 Cal., (F. B.) 473 (1886).
Further enquiry Held by the Full Bench that . when a Magistrate has discharged an accused
—Practice- person under section 253 of the Code of Criminal Procedure, 1882, the High
cause.0 t0 8 '°W Court or Court of Session , under section 437, has jurisdiction to direct further
enquiry on the same nnteiials, and a District Magistrate may, under like cir
cumstances, himself hold further enquiry or direct further enquiry by a sub
ordinate Magistrate. In exercising the powers conferred by section 437,
Sessions Judges and Magistrate should, in the first place, always allow the
person who has been discharged an opportunity of showing cause why there
should not be further enquiry before an order to that effect is made, and next,
they should use them sparingly and with great caution and circumspection,
especially in cases where the questions involved are mere matters of fact.
Queen-Empress v Chotu, I. L, B., 9 All., (F. B.) 52 (1886).
S. 437-] Of Appeal, Reference, etc. 479
E, being charged with theft and mischief in respect of certain branches) Ac<illitt*1T,'Mr"
cut from a tree claimed by the complainant, was tried by a subordinate Mag-is- id,?.^],!1"10
trate on the charge of mischief, and acquitted on the ground that, as against
the complainant ,E had title to the tree. On application of the complainant,
the District Magistrate directed further enquiry into the case under section 437
of the Code of Criminal Procedure, 1882, and on a reference to the Court of
Sessions the Sessions Judge held that, as no enquiry into the charge of theft
had been held the order was legal. Held, that the District Magistrate had no
power to pass such an order under section -137, and that a trial on the charge
of theft was barred bv virtue of section 403 of the Code. Queen- Empress v.
Erramreddi, I. L. B., 8 Mad., 296 (1885).
When a complaint has been dismissed under section 203 of the Code of Enquiry--Juri«-
Criminal Procedure, 1882, or an accused person discharged by a subordinate —District MaC-°
Magistrate, the District Magistrate has power, under section 437 of the Code, (-isiraio-sub-
to direct any Magistrate subordinate to him to make further enquiry into the °!^"™te M"gi9"
complaint dismissed, or into the case of the accused person discharged, even
though there be no additional evidence disclosed, or allegation that such exists.
The term " further enquiry" in section 437 is not restricted to "enquiry upon
further materials or further or additional evidence." Before directing further
enquiry under section 437 it is not obligatory on the District Magistrate to give
notice to the person discharged, or against whom the complaint w is dismissed.
When an order directing such enquiry is made, the subordinate Magistrate to
whom it is directed has jurisdiction, and is bound to carry it out. Such order
remains in force until it is set aside or withdrawn. Quten-Empress v. Doruhji
Harmasji, I. L. R., 10 Rom., 131 (1885).
Application under Chapter XXXII of the Code of Criminal Procedure, ^""^ jud^To
1882, cannot be referred to a Joint Sessions Judge under section 193, clause direct dispmal,
2, of the Code, so as to make it competent for a Joint Sessions Judge to dis- by Joint Ses-
pose of them—a Joint Sessions Judge being strictly precluded from exercis- B'p$*Cnt!orHi °'
ing any of the powers under Chapter XXXII of the Code, and section 1 '.'3, under Chnpter
clause 2, contemplating only cases for trial. Reference hy the Sen-lions Judi/e XXXII.
of Sural, I. L. R., 9 Bom., 352 (1885).-
A Magistrate of the first class is, within the meaning of section 437 of Subordinate—
the Code of Criminal Procedure, 1882, " subordinate " to the Magistrate of uS^"'0 oI
the District, who is, therefore, competent to call for the record of the former,
and deal with it under section 437. Queen- Empress v. Laskari, I. L. R., 7
AU., (F. B.) 853 (1885).
A criminal charge instituted before a Magistrate of the first class was Power of Dis-
finally disposed of by him by an order discharging the accused. Subsequent- }J'cdt 'I"fi,ln,,c
ly the Magistrate of the District, proceeding under section 437 of the Code of Noticeto
Criminal Procedure, 1882, directed a further enquiry to be made by a subor- accused,
dinate Magistrate. This order was made without notice to the accused. Held,
that the Magistrate of the district had no jurisdiction to direct a further en
quiry. Semble, that as a matter of strict law the accused was not entitled to
be heard by the District Magistrate before granting the order diiVcting the
enquiry. Nobin Kristo Mookerjee v. Russick Lull Laha, I. L. R., 10 Cal.,
268 (1884).
A Magistrate having, under section 253 of the Code of Criminal Procedure, Hiwhanre—
discharged a person accused of rioting, an order for further enquiry was made thCT%iiquir£
by the Court of Sessions under section 4 )7. Held, that the offence of rioting
not being proved, the Magistrate was competent to try the accused for the
offence of assault. Queen-Empress v. Papadu, I. L. R., 7 Mad., 454 (1884).
A Joint Sessions Judge cannot exercise the powers of the Sessions Judge Power of Joint
under Chapter XXXII of the Code of Criminal Procedure, 1882. Accordingly 3™£e
where a Magistrate had discharged certain accused persons, and the Joint nnttal.
Sessions Judge had subsequently, on the application of the complainant,
ordered their committal to the Sessions Court, the High Court set aside the
proceedings of the Joint Sessions Judge, leaving it to the Sessions Judge of
the district, if a proper case was made out, to order a commitment, or dispose
of the application an he might think fit. In re Mum Atonal, I. L. B., 9 Bom.,
164 (1884).
Furtherenquiry No order affecting an accused in a criminal matter should be made with-
â/imfncclised ou* £'v'n£ 'nm notice, so as to enable him to appear and show cause against
—Notice. it. A Sessions Judge has no power, under section 437 of the Code of Crimi
nal Procedure, 1882, to direct -a particular Magistrate by name to make the
furtherenquiry contemplated by that section. The further enquiry contem
plated by section 437 of the Code is an enquiry upon further materials, not a
rehearing of the matter upon the same evidence which was before the Magis
trate who held the first enquiry. Chundi ('hum Bhuthicharjca v. Hem.
Chunder Banerjea, I. L. B., 10 Cal., 207 (1883).
cZSZu l° Hi,rh 438. (1) The Sessions Judge or District Magistrate may
if he thinks fit, on examining under section 435 or otherwise.tbe
record of any proceeding, report for the orders of the High Court
the result of such examination, and, when such report contains a
recommendation that a sentence be reversed or altered, may order
that the execution of such sentence be suspended, and, if the
accused is in confinement, that he be released on bail or on his
own bond.
(2) An Additional Sessions Judge shall have and may exer
cise all the powers of a Sessions Judge under this Chapter in res
pect of any case which may be transferred to him by the Sessions
Judge.
Cattle- Trespass There being no appeal from a conviction under the Cattle-Trespass
peal7N° "P" Act, the High Court refused to revise the proceedings of the lower Court
under sections 435. 438 of the Criminal Procedure Code, 1882, since there
being evidence to support the conviction to adopt such a course would be to
substantially allow an appeal. Imprisonment cannot he inflicted in default of
payment of the compensation awarded under the Cattle-Trespass Act. Queen-
Emprest v. Lakshmi Nayakan, I. L. E., 19 Mad., 238 (1896).
Powor of the The power conferred by section 438 of the Criminal Procedure Code,
Sate to nratKm 1882> llpon 11 Di8tril-'t Magistrate to make a reference to the High Court, refers
the propriety of clearly to a " proceeding before any inferior criminal Court." By the words
u finding and '< 0r otherwise " in section 438 the Legislature never intended to give too
Sessfon^Jndfte.0 Magistrate the power to question the propriety of a judgment or sentence by
a superior criminal authority ; nor by the use of the words " or which has
been reported for orders " in section 439, could it have been intended that
such report might be made by an inferior criminal authority with respect to
a proceeding by a superior authority. Queen-Empress v. Karamdi, I. L. B.,
23 Cal., 250 (1895).
wTm°' Urate Section 438 of the Criminal Procedure Code, 1882, does not authorise the
te'rc'fnrte "the District Magistrate to refer to the High Court a case in which the Sessions
High Court a Court has, under section 123 of the Code, refused to confirm his order under
thf8eas7on«h section 118. If the District Magistrate, as the officer responsible for the
Court has re- peace of his district, is dissatisfied with any such order, his proper course is to
fijsedtoeonflrni usk ti,c Public Prosecutor to move the High Court for the revision of the
ms oroer. e;ime Queen.Emprem v. jahundi, 1. L. Ii., 23 Cal., 249 (1895).
Ss. 438-439] Of Appeal, Reference, etc. 481
A Magistrate is not justified in referring under section 438 of the Crimi- J^™1™, XJ
nal Procedure Code, 1882, orders passed by the Sessions Judge on appeal, or(jers p^scA
except in very special cases. Queen-Empress v. Zor Singh, I. L. R., 10 All., by Sessions
146 (1887). laiee-
A District Magistrate, who considers that there has been a miscarriage 5fJter™"cji!$9.
of justice in the Court of Session, should not report the case to the High trnte of pro-
Court for orders under section 438 of the Criminal Procedure Code, 1882, feedings of 8ea-
but should communicate with the Public Prosecutor as to the case in which lie SIon9 'ua*°
thinks such miscarriage has occurred, and invite his assistance to move the
Court with regard to it. Queen-Empress v. Shere Singh, I. L. B., 9 All., 362
(1887).
A District Magistrate, being of opinion that the Sessions Judge had, on J^*'™'1 ner 'ol
appeal, improperly set aside a conviction made by a Cantonment Magistrate, -Êofereiic" to
referred the matter to the High Court under sections 297 of the Code of High Court.
Criminal Procedure, 1872. Held, that the Magistrate had no power to make
such a reference. The Empress v. Rum Lull, I. L. K., 8 Cal., 875 (1882).
One of two prisoners, who were tried jointly before a Bench of Magis- Reference to
trates on the complaint of the District Magistrate, appealed to the Sessions j{agj8frgto! by
Judge and was acquitted. The District Magistrate thereupon, under sections
296 and 297 of the Code of Criminal Procedure, 1872, transmitted the proceed
ings in the case to the High Court, and asked that they might be quashed on
the ground that there had been a failure of justice. Held, that the Magistrate
was not competent to refer the proceedings of a superior Court to the High
Court. In re A David, 6 Cal., L. It., 245 (1880).
Where a person was accused of dishonestly receiving stolen property stolen property
knowing it to be stolen, and was discharged by the Magistrate on the ground powers of°revi-
that there was no evidence that the property wasstolen—hdd, that the Magis- »ion—" Judicial
trate was competent, believing that the property was stolen, to make an erder P™***™*-"
under section 418 of the Code of Criminal Procedure, 1872, regarding its dis
posal. Where there is a Court of appeil, resort should be had thereto before
application is made to the High Court for the exercise of its powers of re
vision Quare.—Whether the issue by the Magistrate of a proclamation under
section 416 of the Code of Criminal Procedure, 1872, is a "judicial proceed
ing " within the meaning of suction 297 of that Code. Empress of India v.
Nilambar Babu, I. L. B., 2 All., 276 (1879).
Where there is the right of appeal provided by law, the High Court will Eitrnorditmry
not exercise its extraordinary powers under section 15 of the High Couits' court?
Act—all other remedies provided by law must tie first exhausted, llajcoomar
Singh v. Dim) Nath Ghuttuck, 1 Cal. L. U., 352 (1878).
439* (1) In the case of any proceeding tlio record of which HiWgI$0o[rlte*vl
has been called for by itself or which has been reported for orders, Son?" ° 'ev '
or which otherwise comes to its knowledge, the High Court may,
in its discretion, exercise any of the p iwers conferred on a Court of
Appeal by sections 11)5, 423, 4 26, 427 and 428, or on a Court by
section 338, and may enhance the sentence ; and, when the Judges
composing the Court of Revision are equally divided in opinion,
the case snail be disposed of in manner provided by section 429.
(2) No order under this section shall be made to the preju

dice of the accused unless he has had an opportunity of being
heard either personally or by pleader in his own defence.
31
482 Of Appeal, Reference, etc. [Ck. XXXII.
(3) Where the sentence dealt with under this section has
been passed by a Magistrate acting otherwise than under section
34, the Court shall not inflict a greater punishment for ths offence
which, in the opinion of sucli Court, the accused has committed,
than might have been inflicted for such offence by a Presidency
Magistrate or a Magistrate of the first class.
(4) Nothing in this section applies to an entry made under
section 273, or shall be deemed to authorise a High Court to con
vert a finding of acquittal into one of conviction.
(5) Where under this Code an appeal lies and no appeal is
brought, no proceedings by way of revision shall be entertained at
the instance of the party who could have appealed
Dismissal of Where a complaint was dismissed by an Honorary Magistrate and an ap-
vivaFof "t_-110' phcation was made to a Presidency Magistrate on the same facts and •latorials
ceedinits— for a fresh summons : Held, that as a Presidency Magistrate has co-ordinate
Bightof appeal, jurisdiction with an Honorary Magistrate, there was no right of appeal to the
Presidency Magistrate from the order of the Honorary Magistrate. The pro
per course would be to apply to the High Court under sections 423 and 439 of
Act X of 1882 to set aside the order and direct a re-trial. Grish Chumler Roy
v. Dwarka Dim Agarwallah, I. L B., 24 Cal., 528 (1897).
on^risioi?0-"1^ The interference of the High Court in revision is not limited to matters of
Rerision on law ; it is fully competent to this Court to enter into matters of fact if it
thinks fit. But the mere application of a party to examine the evidence in
any case would not be a sufficient ground for doing so. There must appear on
the faco of the judgment or order complained of, or of the record, some ground
to induce the High Court to think that the evidence ought to be examined in
order to see that there has been no failure of justice. But no hard-and-fast
rule can be laid down ; each case will have to be dealt with according to its
own circumstances. Keshab Chunder R01/ v. Akhil Metey, I. L. If., 22 Cal.,
998 (1895).
High Court's The High Court has jurisdiction to interpose in the case of an order made
power of revi- by a Court under section 476 of the Code of Criminal Procedure, 1882, and has
MO" also the power to determine whether the discretion given by that section has or
has not been properly exercised. Chaudhari Mahomed Izharul Huq v. Queen-
Emjn-ess, I L. R., 20 Cal., 349 (1892).
High Court's Though the High Court has the power, under section 439 of the Code of
Hon-Ord^'f Criminal Procedure, 1882, to revise an order of acquittal, yet ordinarily it
acquittal.6' ° does not interfere with such an order in the exercise of its revisional jurisdic
tion, because an appeal can always be made by the Local Government under
section 417 of the Code. Ileera Bai v. Frainji Bhikuji, I. L. R., 15 Bom.,
349 (1890).
£werCofUrreu- Undor anions 435 and 439 of the Code of Criminal Procedure, 1882, the
»ion in criminal High Court can, in the exercise of its revisional jurisdiction, interfere with the
ca"os- findings of fact of inferior Courts; and will do so, if there aro very exceptional
grounds for its interference, in the interests of justice. A person \\\w offers a
bribe to a public officer is an accomplice. Per Birdwood, J.—A conviction is
not illegal, merely because it proceeds on the uncorroborated evidence of an
accomplice. Such evidence, being admissible, furnishes as legal a basis for a
conviction as any other evidence which is admissible. The omission to fol
low the established rule of practice as to the corroboration of such evidence
439*] Of Appeal, Reference, etc. 483
does not constitute an error in law ; but where the evidence of an accomplice is
not of a character to warrant the refusal of a Court to apply to it the maxim
enunciated in Illustration (&) of section 114 of the Evidence Act, a con
viction based on such evidence alone would be of questionable propriety.
Per Jardini, J.—As a rule, the Court refuses to interfere (1) where the
Legislature intended the original or appellate decision on the facts to be
final ; (2) where the relief sought might be got from a lower Court of concur
rent revisional jurisdiction ; and (3) where the lower Court's judgment on
the facts is not shown to be clearly and manifestly wrong. Sections 114
and 133 of the Evidence Act are to be read together, and neither section is
to be ignored in the exercise of judicial discretion. The Illustration (b)
of section 114—" that the Court may presume that an accomplice is unworthy
of credit , unless he is corroborated in material particulars "—is, however, the
rule, and when it is departed from, the Court should show, or it should appear
that the circumstances justify such departure. Accordingly where a convic
tion was based solely on the evidence of accomplices and the circumstances
connected with the preparation and conduct of the case, as disclosed by the
record, and portions also of the evidence adduced at the trial , showed that it
would not be proper to act on that evidence, the Court set aside the conviction.
Queen-Empress v. Chogan Daya Hum, I L. R., 14 Bom., 331 (18'JO).
Section 195 of the Code of Criminal Procedure, 1882, distinguishes be- Distinction be
tween the sanction granted by a Court to a prosecution by a private individual twecn a sanc-
aud a complaint made by the Court itself. A superior Court to which such Bi0pri™iJoWpw>
Court is subordinate may revoke the sanction granted in the former case to the «on »nd * corn-
private prosecution, but it has no power in the latter case to set aside a co n- E1*"^ bjr *
plaint duly made by a subordinate Court. Queen-Empress v. Rachuppu. I. L. "
K., 13 Bom., 10D (1888).
On the 2'Jth December, 1887, the accused, a police-constable, was on duty Hiirh Court*!
at a temporary post near the Arthur Crawford Market. His turn of duty last- power of rovi-
ed from 4 to 7 a. m. Between 6-30 and 7 A. M., he saw the 'complainant car-
rying under his arm three pieces of cloth. Suspecting that the cloth was
stolen property, he went up to the complainant and questioned hitn. In answer
to one of the questions the complainant stated that the cloth was made in
England. The accused, noticing that each piece bore Gujrathi marks, and not
knowing that such marks arc placed on English-made goods, concluded that
this statement was false anil that the cloth had been stolen. He took hold of
one of the pieces of cloth in order to examine it more closely. The compla'n-
ant objected to this, and there was a souffle between them for the possession
of the cloth. The accused then arrested the complainant, and took him to a
European inspector, to whom he stated the facts, alleging that he had arrest
ed the complainant because he had assaulted him. The inspector, seeing
that the complainant was an old man, and on the accused saying he was not
hurt, let the complainant go. The complainant then lodged a complaint be
fore the Acting Chief Presidency Magistrate, charging the accused with wrong
ful restraint and wrongful confinement—offences punishable under sections
341 and 342, respectively, of the Penal Code. The defence was, that the com
plainant had assaulted the accused, and had been on that account arrested and
kept in confinement until released by the inspector of police. The Magistrate
found that there was no justification for the suspicion which the accused pro
fessed to entertain ; that there were no reasonable grounds for questioning the
complainant about the cloth in his possession ; and that the scuffle was caused
solely by the action of the accused in treating the complainant, without any
valid reason, as a suspected thief. The Magistrate convicted the accused of
wrongful confinement under section 342 of the Penal Code, and sentenced him
to four months' rigorous imprisonment. Held, by the High Court, that the
conviction was wrong. The accused having, under the circumstances of the
case, an honest suspicion that the cloth in the possession of the complainant
484 Of Appeal, Refetence, etc. [Ch. XXXII.
was stolen property, was justified in putting questions to the complainant, the
answers to which might clear away his suspicions, and having received answers
which were not, in his opinion, satisfactory, he acted under a bond fide belief
that he was legally justified iu detaining what he suspected to be stolen pro
perty. The putting of questions to the complainant, not for the purpose of
causing annoyance or from idle curiosity, but in order to clear up his suspi
cions, was an indication of good faith, us defined in section 52 of the Penal
Code. He was, therefore, protected by section 79 of the Code. Even though
the act of the accused in detaining the cloth might not have been strictly justi
fiable by law,—that is, even though there might not have been a complete
basis of fact to justify a reasonable suspicion that the cloth was stolen pro
perty,—still the complainant had no right of private defence uuder section 99
of the Code, as the accused was a public servant acting in good faith under
color of his office, and his act was not one which caused the apprehension of
death or of grievous hurt. The complainant was not justified in refusing to
allow the accused to inspect the cloth, in snatching it from his hands, and in
scuffling with him. He was therefore legally arrested, under section 54, clause
5 of the Code of Criminal Procedure, 1882, for obstructing a police-officer
while acting in the execution of his duty, field also, that the High Court will
exercise its powers under sections 435 and 439 in the interests of justice,
in exceptional cases as where the enquiry in the lower Court has been faulty.
Bhawoo Jivaji v. Mtdji Dayal, I. L. R., 12 Bom., 377 (1888).
High Court's Where a Magistrate lias passed an order under section 145 of the Code of
powerofrevi- Criminal Procedure, 1882, whereas the proper order in the case should have
been one under section 146, the High Court in revision will make the order
which the lower Court ought to have made. Bird v. Richardson, I. L. K., 14
Cal., 361 (1887).
~j — —— — ~~— .... —r£—, ..'f!" "ic»j, ocûvii in

verse such order and direct a re-trial of the appeal, the proper tribunal to con
duct which is the Sessions Court of appeal, or such other Court of equal juris
diction as the High Court may entrust, under section 526 of the Code, with
the
134 trial of the appeal. Queen-Emptens v. Baltcunt, 1. L. R., 9 All.,>\f F. B J1
(1886).
High Court's Where a Sessions Judge rejected an appeal summarily under section 421
power of revi- 0f tlio Code of Criminal Procedure, 1882, by an order consisting merely of the
wo"' words " appeal rejected," and an application of revision of such order wus
made to the High Court nearly nine months thereafter, on the ground that the
Judge was wong in rejecting the appeal without assigning his reasons for so
doing—7icW,ithat this objection, if taken within a reasonable time, would have
been valid, but as the application for revision was made with very great
delay, the Court should not interfere. Queen- Empress v. Ham Narain, I. L.
R., 8 All., 514 (1886).
Enhancement of ^ head-constable was convicted under sectien 330 of the Penal Code, and,
sentence on ap- at a trial before a Sessions Judge, sentenced to four months' simple imprison-
P©*1' ment. The prisoner appealed. The High Court, in dismissing the appeal,
directed, as a Court of revision, that the sentence passed should be enhanced.
Mehter Ali v. Queen-Empre**, I. L. R., 11 Cal., 530 (1885).
Enhancement of Where the accused, who was a head-constable, was found guilty of mak-
sentence. jng a charge under section 211, and of giving false evidence under sec
tion 193 of the Penal Code, and the Sessions Judge passed sentences of three
months' simple imprisonment for each offence, and, taking into consideration
S. 439 ] Of Appeal, Reference, etc. 485
tho accused's past conduct, directed that the sentences should run concur
rently. Held, tluvt the sentence was inadequate and illegal. Accordingly, tho
sentences were enhanced to three months' rigorous imprisonment for each
offence ; and as tho two offences wero distinct, tho IJigh Court directed, under
section 35 of the Code of Criminal Procedure, 1882, ono sentence to commence
after the expiration of the other. Queen-Empress v. Mahomed, I. L B., 10
Bom., 254 (1885).
Under section 435 of the Code of Criminal Procedure, 1882, tho High Revision on
Court has pjwer to go into questions of fact ; but it will only exercise this ,acta-
power in cases in which it finds that it will be in the interests of justice to do so.
N was charged with having made a false statement before a Sub-Begistrar in
identifying K, a person who had executed a mortgage-deed in favour of R,
and who was a neighbour of his (N's), as being the person to whom R had
agreed to advance the money, the consideration of the mortgage. The false
statement consisted in his stating to the Sub-Begistrar that he " knew K as
his neighbour." During the hearing of the case, it was sought to prove a
statement made by R to a third party (R having died previous to the institu
tion of the case) to tho effect that N had told him certain facts. A memoran
dum, alleged to be in the handwriting of N, was also tendered and received
in ovidenco without any further proof us to its being in N's handwriting than
that it bore a similarity to another piece of paper proved to bear his
handwriting. Held, that tho statement made by R to the third party was
inadmissible and irrelevant, and that the memorandum was wrongly received in
evidonco. In re Nobiii Krishiui Hookerjee v. Rassick Lull Laha, I. L. B., 10
Cul., 1047 (1884).
Tho High Court, in the exercise of its powers of revision, can enhance a Enhancement
sentence so as to alter its nature. Queen-Emin-ess v. Ram Kuria, I. L. B., 6 ?l£njfil!?,j?!
AH., C22 (1884). nature.
In cases in which the law allows an appeal the High Court, as a Court of Court of revi-
revision, will not, except on vory exceptional grounds, exercise the powers of a^!J^Court °'
an appellate Court ; but where such exceptional grounds exist, as where the
conviction is not in any degree supported by the evidence, the High Court
will exercise its discretion under section 439 of tho Code of Criminal Proce
dure, 1882, and reveise the conviction and sentence. Queen-Empress v. Shekh
Saheb Badrudin, I. L. B., 8 Bom., 197 (1883).
L made a complaint againt S by petition, in which ho only charged Hi*h Court's
S of having committed offences punishable under sections 193 and 218 of J^"w °' revi'
the Penal Code, but in which ho also aecusod S of acts, which, if the
accusation had been true, would have amounted to an offence punishable
under section 466 of that Code with seven years' imprisonment. The Magis
trate enquired into the charges against S under sections 193 and 218 of
the Penal CoJe and directed his discharge. L then applied to the Court of
Session to direct S to bo committed for trial on the ground that he had been
improperly discharged, which the Court of Session did, und S was com
mitted for trial charged under section 218 of the Code, and was acquitted by
the Court of Session. The Court of Session then, under section 472 of the
Code of Criminal Procedure, 1872, charged L with offences punishable under
sections 193, 195, 211, and 211 and 109 of the Penal Code, and committed him
for trial. Held, that such commitment was not bad by reason that an offence
under section 193 of the Penal Code is not exclusively triable by a Court of
Session. Held also, per Stuart, C. J., (Si'ANKiE, J., doubting), that the High
Court is competent, in the exercise of its power of revision under section 297
of Act X of 1872, to (mash a commitment made by a Court of Session under
the provisions of section 472 of that Act. Held also, per Si'ANKiE, J., that
the Court of Session was competent, notwithstanding that L had only charged
486 Of Appeal, Reference, c/c. [Ch. XXXlf.
S with offences under sections 193 and 218 of the Penal Code, to charge
L with offences under sections 195 and 211, if such offences had come
under its cognizance. Empress of India v. Lachman Shigh, I. L. B., 2
All., 398 (1879).
Hinh Court'a Where a person was accused of dishonestly receiving stolen property
power of rovi- knowing it to be stolen, and was discharged by the Magistrate on the ground
that there was no evidence that the property was stolen—held, that the Magis
trate was competent, believing that the property was stolen, to make an order
under section 418 of the Code of Criminal Procedure, 1872, regarding its
disposal. Where there is a Court of appeal, resort should be made thereto
before application is made to the High Court for the exercise of its powers
of revision. Empress of India v. Nilambar Balm, I. L. R., 2 All.. 276 (1879).
HUth Court'* ^< a j°'nt owner of a parcel of land, erected on it an edifice without the
extraordinary consent and against the will of B, another joint owner. A dispute having
ttTh^'courTa a™en *n consequence, the Magistrate held an enquiry, and made an order under
Charter, Haute Bection 530 of the Code of Criminal Procedure, 1872, awarding to A exclu-
!»• sive possession of the part of the land on which the edifice had been erected.
Held, per Jackson, J , that such order was erroneous, as the matter was not
one to which section 530 could apply. B subsequently brought a suit in the
Civil Court to establish his title to joint possession of the whole parcel and
for a declaration that A was not entitled to erect any edifice thereon ; and
he further prayed that such edifice should be removed. It obtained a decree,
whereupon his servants went on the land and pulled it down. They were
charged before the Deputy Magistrate with having committed mischief, and
on this convicted and fined. Held, per Jackson, J., that as there had been no
causing of wrongful loss the accused had not been guilty of mischief. On
the 8th October, the accused, who were the servants of B, found the men in
the employ of A were putting up this erection, a nawbut-khana, again, and
accordingly protested against its erection, pulled down the bamboos, thrust
aside the servants of A , throwing to the ground one man who was clinging
to the bamboos. On the 9th October, 1877, these servants were charged before
the Magistrate with rioting, and being called upon their defence named seve
ral witnesses and summonses on the following morning were issued for their
appearance, but they were not found. The accused then applied for further
time for the appearance of the witnesses. This the Magistrate refused to
grant, and convicted the accused on the 12th October, 1877. Held, per Jack
son, J., that this being a warrant-case, it was the duty of the Magistrate to
summon the witnesses that might be offered by the accused, and that he
might at his discretion have adjourned the case. Held, further per Jackson,
J., that the meaning of section 359 of the Code is, that if among the persons
named by the accused as witnesses, the Magistrate considers that any witness
is included for the purpose of vexation and delay, he is to exercise his judg
ment and enquire whether such witness is material ; but that the section is
not intended to enable the Magistrate to enquire in what the defence of the
accused person is to be, and to consider whether, on hearing the nature of the
defence, he is absolutely to abstain from summoning the whole of the witness
es cited by the accused ; and further, that in the present case there was not
any purpose of vexation or delay, and that by the refusal to grant further
time the accused had been probably prejudiced in their defence. Held, fur
ther, per Jackson J., that as the accused were not on the land in question as
membeis of an unlawful assembly, nor for any unlawful purpose, the convic
tion, as well as the procedure, was illegal. Held, per Cunningham, J., that the
accused were merely exercising the remedy of abating a private nuisance, and
were exercising a legal right of self-defence. Held, further, per Cunningham,
J., that the acts of the complainants in erecting the nawbut-khana, amounted
to mischief, and come within (he purview of section 425 of the Penal Code.
Held, further,^>er Ainslie and McDonell, JJ., that the High Court, in the
exercise of its powers of extraordinary jurisdiction, cannot, in criminal mat

ters, interfere, unless all other remedies provided by law have been previously
exhausted. Therefore, where parties who hud been convicted of riot by a
Magistrate, and who having a right of appeal to the Sessions Court, instoad
of doing so, moved the High Court under clause 15 of the Charter, the Court
would not interfere until that remed\ had been resorted to. The Empress v.
Rajcoomar Singh, I. L. K., 3 Cal., 573 (1878).
In a case of apprehended breach of peace, the Magistrate bound over the novjsjon_
parties in sums of money aggregatiug on the whole to Rs. 60,000 or upwards, lower of Hi*h
The High Court quashed the order, holding that it wasaltogether unreasonable. Couit—Material
Per Makkby, J.— Sections 294 and 297 of the Code of Criminal Procedure, error"
1872, do not debar the High Court from interfering where, in cases requiring
the exercise of discretion, it appears upon the face of the proceedings that the
Magistrate has exercised no discretion at all, or has exercised his discretion in a
manner wholly unreasonable. Per Muter, J.— Under section 297, the High
Court has the power of interfering with judgments, sentences, or orders of
Courts subordinate to it, if there has been a material error in any judicial pro
ceeding of such Courts, meaning thereby any error appearing on the face of a
judicial proceeding resulting in an unjust order. In re Juggut Chunder
Chuckerbulty, I. L. it., 2 Cal., 110 (187G).
The High Court quashed a conviction based not upon the evidence which xjo^ggf^ evl.
the Deputy Magistrate recorded, but upon unrecorded evidence taken subse- dence.
quently on the spot, for it was impossible for the latter evidence to be seen in
appeal. In re SreeputteeUhurn Sircar, 24 W. B., 14 (1875).
The High Court has jurisdiction, having regard to sections 297 and 64 of Suspension of
the Code of Criminal Procedure, 1872, to take cognizance of and revise the pr o c eedinira -
proceedings of a Magistrate while they are in an interlocutory state of pend- neco™-B!"1-
ing investigation, and may suspend such proceedings without having the re
cord before it ; it may also in such a case order bail to be taken from the per
son accused. Abdool Kadir Khan v. The Magistrate of Purntah, 20 \V. R., 23
(1873).
440. No party has any right to be heard either personally Optional with
or by pleader before any Court when exercising its powers of pwUes.10 he"
revision :
Provided that the Court may, if it thinks fit, when exercis

ing such powers, hear any party either personally or by pleader,
and that nothing in this section shall bo deemed to affect section
439, sub-section [2).
Counsel cannot claim as of right to be heard on a referenco to the High Couniel to be
Court under section 296 of the Criminal Procedure Code, 1872. Beg. v. i?S,',a 88 of
Devama, I. L. B., 1 Bom., 64 (1875). n8nu
441. When the record of any proceeding of any Presidency statement by

Magistrate is called for by the High Court under section 435, the £^"01
Magistrate may submit with the record a statement setting forth dwSt?on to "be
the grounds of his decision or order and any facts which he thinks considered by
material to the issue ; and the Court shall consider such statement * *
before over-ruling or setting aside the said decision or order.
488 Special Proceedings. [Ch. XXXIII.
High court'i 442. When a case is revised under this Chapter by the High
tiSed 'to'lowor Court, it shall, in manner hereinbefore provided by section 425,
court or Maps- certify its decision or order to the Court by which the finding,
u ' sentence or order revised was recorded or passed, and the Court
or Magistrate to which the decision or order is so certified shall
thereupon make such orders as are conformable to the decision so
certified ; and, if necessary, the record shall be amended in ac
cordance therewith.
PART VIII.
SPECIAL PROCEEDINGS.
CHAPTER XXXIII.
Criminal Pboceedings Against Europeans and
Americans.
Magistrates who 443* No Magistrate, unless he is a Justice of the Peace,
S and't'ry'ciiar" and (except in the case of a District Magistrate or Presidency
ron^'British Magistrate) unless he is a Magistrate of the first class and an
subjects. European British subject, shall inquire into or try any charge
against an European British subject.
Privilege—Wai- Section 84 of the Criminal Procedure Code, 1872, must be construed strict-
ver TEuropean jy with section 72, and before a European British subject can be considered to
British sub- jmve wa;v0(j i\ie privilege conferred upon him by section 72, it must appear
that his rights under that section have been distinctly made known to him,
and that he must have been enabled to exercise his choice and judgment whe
ther he would or would not claim those rights. The provisions of section 72
of the Code relating to the kind of Court which shall have jurisdiction and
shall not havo jurisdiction to enquire into a complaint or try a charge
against a European British subject, constitute a privilege,—that is to sav,
they are not so much words taking away jurisdiction entirely, as words
which confer on the British subject a right to be tried by a certain
class of Magistrates and by no others, which right the Code enables him
to give up. No person can by waiver or consent enable a Magistrate
or a Judge to try a case which he is disqualified to try by some circumstance
not personal to the accused. The waiver of privilege spoken of in section
84 must be an absolute giving up of all the rights, with reference to Chapter
VII of the Code, which a European British subjet lias ; and the words " dealt
with as such before the Magistrate " mean everything contained in the chap
ter,—that is to say, the tribunal having cognizance of the case, the procedure,
and also the punishment to which the accused would be liable. The Emiireza
v. Allen, I. L. R., C Cal., 83 (1880).
Sessions Judge 444. No Judge presiding in a Court of Session, except the
âlf Brituh Sessions Judge, shall exercise jurisdiction over an European
Aasistont Kes- British subject unless he himself is an European British subject ;
»ions Judge to and if he is an assistant Sessions Judge, unless he has held the office
foV'three1 yean! of Assistant Sessions Judge for at least three years, and has been
July om^wercL specially empowered in this behalf by the Local Government.
Ss. 442-449.] Special Proceedings. 489
445. Nothing in section 443 or section 444 shall prevent any Jj8g^"noew£j.
Magistrate from taking cognizance of an offence committed by any [^''^
European British subject in any case in which he could take Inject. n'sl
cognizance of a like offence if committed by another person :
Provided that, if he issues any process for the purpose of com
pelling the appearance of an European British subject accused of
an offence, such process shall be mado returnable before a Magis
trate having jurisdiction to inquire into or try the case.
446. Notwithstanding anything contained in section 32 or Sentences winch
section 34, no Magistrate other than a District Magistrate or Presi- ""proviS?
dency Magistrate shall pass any sentence on an European British
subject other than imprisonment for a term which may extend to
three months, or fine which may extend to one thousand rupees, or
both, and a District Magistrate shall not pass any such sentence,
other than imprisonment for a term which may extend to six
months, or fine which may extend to two thousand rupees, or both.
447. (/) When an European British subject is accused m^"^^'^
of an offence before a Magistrate, and such offence cannot, in the Court of ses-
opinion of such Magistrate, be adequately punished by him, and is tomgh Court,
not punishable with death or with transportation for life, such
Magistrate shall, if he thinks th.it the accused ought to be com
mitted, commit him to the Court of Session, or, in the case of a
Presidency Magistrate, to the High Court.
[2) When the offence which appears to have been commit
ted is punishable with death or with transportation for life, the
commitment shall be to the High Court.
448. Where any person committed to tho High Court ofriw„°c'h "n"cS
under section 447 is charged with several offences of which one is and the othe™
punishable with death or transportation for lite and the others £b1cnwith iTe'atti
with a less punishment, and the High Court considers that he tu>nt™r>lijfer.ta"
sliould not be tried for tho offence punishable with death or trans
portation, the High Court may nevertheless try him for the other
offences.
449. (1) Notwithstanding anything contained in section ^^"J^ bo
31, bo Court of Session shall pass on any European British sub- pVssedby1 court
ject any sentenc3 other than a sentence of imprisonment for a term 01 8es810n-
which may extend to one year, or fine, or both.
(2) If, at any time after the ommitmeut and before signing WhJfif»eMion»
judgment,
Jo ' the presiding
r o ■»Judge
e thinks that the offence
-iii which 1 an- powers"."<»».
Jud*- lnade-
pears to be proved, cannot be adequately punisued by such a quale,
sentence, he shall record his opinion to that effect and transfer the
case to the High Court. Such Judge may either himself bind
over, or direct the committing Magistrate to bind over, the com
plainant and witnesses to appear before the High Court.
490 Special Proceedings, [Ch. XXXIII.
■anbefora9*' *SO. (7) In trials of European British subjects befora a

Hiirh courtor High Court or Court of Session, if, before the first juror is called
court of So«- anj accepted, or the first assessor is appointed as the case may be,
any such subject requires to be tried by a mixed jury, the trial
shall be by a jury of which not less than half the number shall be
Europeans or Americans or both Europeans and Americans.
(2) When any such trial before a Court of Session wonld in
the ordinnry cour?e be with the aid of assessors, the European
Pritish subject accused, <>r, where there are several European
British subjects accused, all of ihem jointly, may, instead of claim
ing to be tried by a mixed jury under sub-section (I), require that
not less than half the number of the assessors shall be Europeans
or Americans or both Europeans and Americans.
Sif^BriSr" *51 (i) In trials of European British subjects before a
fury' uitore'"1" district Magistrate for any offence, any such subject may, in a
District Miuris- summons-case be-fore he is heard in his defence under section
" or in a warrant-case before he enters on his defence under secti >n
256, claim that the trial shall be by a jury composed in manner
prescribed by section 450.
(2) If a claim is made under sub-section (/) in a summons-
case at the time when the Magistrate proceeds under section 244
to hear the accused, or in a warrant-case at the time when the
Magistrate calls up >n the accused under section 256 t > enter upon
the defence, the Magistrate shall forthwith issue the necessary
orders for the trial by a jury as aforesaid .
(.3) If such a claim is mado at an earlier stage of the proceed
ings, the Magistrate shall issue such orders whenever it appears
to him from the evidence recorded that there will be a sufficient
case to go before a jury.
{4) In every such case the Magistrate shall, notwithstanding
anything contained in section 242, before issuing any orders as
aforesaid, frame a formal charge.
(5) The provisions of sections 211, 216, 217, 219 and 220
shall, so far as may be, apply for the purpose of securing the
attendance of the omplainant, the accused and the witnesses at
every trial to be held under this section.
(C) The provisions of this Code relating to the procedure in
a trial by jury before a Court of Session shall, as nearly as may be,
apply to every trial under this section as if the District Magistrate
were a Sessions Judge and the accusei had b'en committed to his
Court for trial.
(7) All Courts may construe any of the provisions referred
to in sub-section (5) or sub-section (JB), in so far as they are made
Ss. 450-45 1.] Special Proceedings. 491
applicable by those sub-sections, with such verbal alterations not

affecting the substance as may be necessary or proper to adapt the
same to the matter before them.
(5) Nothing in this section shall affect the power of the
Magistrate to commit an accused person for trial under section
347 or section 447.
... (9)
K '. If an accused
, . ,, person
■ . . claims
„ ,, tot\- bo
, ■ tried
, nr by
• 1 jury
■ ii under T«n,'CT
• Other l° in
Court
this section and in the opinion ot the District Magistrate there is certain casoi.
reason to believe that a jury composed in manner prescribed by
section 450 cannot be constituted for the trial before himself, or
cannot be so constituted without an amount of delay, expense or
inconvenience which under the circumstances of the case would
be unreasonable, he may, instead of issuing orders for the trial
before himself under this section, transfer the case for trial to
such other District Magistrate or to such Sessions Judge as the
High Court may, from time to time, by rules made by it in this
behalf and approved by the Local Government, or by special
order, direct.
(10) When a case is transferred under this section to a

Sessions Judge or District Magistrate, he shall with all convenient
speed try it with the same powers (including the power of com
mitment) and according to the same procedure as if he were a
District Magistrate acting under this section.
The effect of clause 6 of section 8 of Act III of 1884 (Criminal Procedure European Bri-
Code Amendment Act) is to confer upon the District Magistrate precisely the tinii subject-
same authority as the Sessions Judge has, under section 307 or the Criminal MwiJrote'wTth
Procedure Code, 1882, to submit to the High Court a case in which ho disagrees a jury—
with the verdict of a jury so completely that he considers a reference necessary, {^f'^ ''rtis^lun**
The expression "trial by jury " as used in clause 0 of section 8 does not only from verdict to
refer to proceedings up to the time when the jury pronounce their verdict, but submit the case
refers geuerically to cases triable with a jury as contra-distinguished from l^wers' oMliifh
cases tried with the help of assessors, or in any other manner mentioned in the Court—Words
Criminal Procedure Code. No trial can be, legally speaking, concluded until £Jy-w def*mn"
judgment and sentence are passed, and the trial of a case referred by a Ses
sions Judge to the High Court under section 307 of the Code remains open for
the High Court to conclude and complete, either by maintaining the verdict of
the jury and causing judgment of acquittal to bo recorded, or by setting aside
the verdict of acquittal, and causing conviction and sentence to be entered
against the accused. The provisions of section 307 of the Code are not in
any way cut down by sections 418 and 423 ; and the High Court has power,
under section 307, to interfere with the verdict of the jury where the verdict is
perverse or obtuse, and the ends of justice require that such perverse finding
should be set right. The power of the High Court is not Hunted to inter
ference on questions of law, i. e , misdirection by the Judge, or misapprehen
sion by the jury of the Judge's directions on points of law. Explanation IV
of section 499 of the Penal Code does not apply where the words used, and
forming the basis of a charge, are per se defamatory ; though when the mean
ing of words spoken or written is doubtful, and evidence is necessary to deter
mine the effect of such words, and whether they are calculated to harm a
492 Special Proceedings. [Ch. XXXIII.
particular person's reputation, it is possible that the principle enunciated in the

explanation might and would with propriety be applied. Uueen- Empress v.
McCarthy, I. L. R., 9 AIL, 420 (1887).
Trioi of Euro- 452. In any case in which an European British subject is ac-
sTi j e cBtrioiid cused jointly with a person not being an European British subject,
Native jointly and such European British subject is committed for trial before a
High Court or Court of Session, such subject and person may be
tried together, and the procedure on the trial shall be the same
ns it would have been bad the European British subject been tried
separately :
mily cWm'aem- Provided that, if the European British subject requires under
rate trial. section 450 to be trie.l by a mixed jury, or by a mixed set of asses
sors, and the person not being an European British subject requires
that he shall be tried separately, the latter persou shall be tried se
parately in accordance with the provisions of Chapter XX [II.
RiKht of appeal A person, not being a European British subject, who is tried before a Dis-
Court1})* a ' *''ct; M"g'strilte jointly with European British subject, cannot claim, under sec-
sot" other" tfian tion 452 of the Code of Criminal Procedure, 1882, the right of appeal to the
a European Bri- High Court which is exclusively reserved to such European British subject,
jointly^tried In « J"b Solomon, I. L. B., 14 Bom., 1G0 (188U).
with such sub- , , ,
ject. 453. (/) When any person claims to be dealt with as an
Procedure on European British subject, he shall state the grounds of such claim
to"loo°dwitSOn to tne Magistrate before whom ho is brought for the purposes of
with as Euro- the inquiry or trial ; and such Magistrate shall inquire into the
pciin British , i ^■ , , , ii, /? i • -i
subject. truth oi such statement, and allow the person making it a reason
able time within which to prove that it is true, and shall then
decide whether lie is or is not an European British subject, and
shall deal with him accordingly. If any such person is convicted
by such Magistrate and appeals from such conviction, the burden
of proving that the Magistrate's said decision was wrong shall lie
upon him.
{2) When any such person is committed by the Magistrate
for trial before the Court of Session, and such person before such
Court claims to be dealt with as an European British subject, such
Court shall, after such further inquiry, if any, as it thinks fit,
decide whether he is or is not an European British subject, and
shall deal with him accordingly. If he is convicted by such Court
and appeals from such conviction, the burden of proving that the
Court's said decision was wrong shall lie upon him.
(3) When the Court before which any person is tried, de
cides that he is not an European British subject, such decision
shall form a ground of appeal from the sentence or order passed
in such trial.
European A w'10 was charged before a Magistrate, who was competent to enquire
British subject into a complaint against a European British subject, with an offence triable by
—Jurisdiction. jjlmj claimed to be dealt with as a European British subject, fi did not state
the grounds of such claim. The Magistrate rlirl not decide whether B was
or was not a European British subject, but proceeded with the case, dealing
with him as if he were not a European British subject, and sentenced him to
rigorous imprisonment for one year and to a fine On appeal by B the High
Court remanded the case to the Magistrate in order that he might decide, in
the manner directed by section 83 of the Criminal Procedure Code, 1872,
whether B was or was not a European British subject. The Magistrate having
decided that B was a European British subject, held that, this being so, and it
appearing that the Magistrate had dealt with B as other than a European
British subject, B's trial was void for want of jurisdiction. Also, that, the
Magistrate having tried the case without jurisdiction, the High Court could
not proceed with-i?'* appeal on the merits, with a view, in the event of its
deciding that the offence of which B was charged had been established, to
the reduction of the sentence passed upon him by the Magistrate to one
which he was competent to pass under section 74 of the Code. Einprem of
India v. Berritl, I. L. B., 4 All., 141 (1881).
The prisoner pleaded that he was a British born subject and therefore rlei of beinjt
not amenable to the jurisdiction of the Sessions Judge of Tellicherry, by ^Tsu^'" tB""
whom the prisoner had been convicted of criminal misappropriation. The 1818l")ec-
evidence showed that that prisoner was the great grandson of John Turnbull,
and to have been a Sergeant in the service of the King or of the East India
Company, but was insufficient to establish a lawful marriage between him
and a Native Christian woman by whom he hail a son, and the evidence as
to his nationality was also incomplete. Held, that the plea to the jurisdic
tion was not made out. Jure Thomas Nasa Turnbull, 6 Mad. II C, 7 (1870).
A Deputy Magistrate ought to give an opportunity to a prisoner to plead Ploa of ^j,,,,
that he is a European British subject. The mere statement of a prisoner Europra n Bri-
that he is a European British subject, made before the Deputy Magistrate tish 8l,bioct-
after the trial had been completed, cannot be acted on. J/. Clark v. W.
Bewie, 5 W. R., 53 (1806).
454. (/) If an European British subject does not claim Fmiuretopjend
to be dealt with as such by the Magistrate before whom he is status a waiver,
tried or by whom he is committed, or if, when such claim has
been made before, and disallowed by, the committing Magistrate,
it is not again made before the Court to which sucli subject is
committed, he shall be held to have relinquished his right to
be dealt with as such European British subject and shall not
assert it in any subsequent stage of the same caso.
(2) Unless the Magistrate has reason to believe that any

person brought befora him is not an European British subject,
the Magistrate shall ask such person whether he is such a subject
or not.
Section 84 of the Criminal Procedure Code, 1872, must be construed Privilege—Wal-
gtrictly with section 72, and before a European British subject can be consi- ver—European
dered to have waived the privilege conferred upon him by section 72, it must H™1'81181'0!60*-
appear that his rights under that section have been distinctly made known
to him, and that he must have been enabled to exercise his choice and judg
ment whether lie would or would not claim those rights. The provisions of
section 72 of the Code, relating to the kind of Court which shall have juris
diction and shall not have jurisdiction to enquire into a complaint or try a
charge against a European British subject, constitute a privilege,—that is to
494 Special Proceedings. [Ch. XXXHt.
say, they are not ho much words taking away jurisdiction entirely, as words
which confer on the British subject a right to he tried by a certain class of
Magistrates and hy no others, which right the Code enables him to give up.
No person can by waiver or consent enable a Magistrate or a Judge to try
a case which he is disqualified to try hy some circumstance not personal to
the accused. The waiver of privilege spoken of in section 84 must be an
absolute giving up of all the rights, with reference to Chapter VII of the
Code, which a European British subject has ; and the words " dealt with as
such before the Magistrate " mean everything contained in the chapter, that
is to say, the tribunal having cognizance of the case, the procedure, and
also the punishment to which the accused would be liable. The Empre&s v
Allen, I. L. R., 6 Cab, 83 (1880).
Si^chaptcr of 455. Where a person who is not an European British sub-

y<™>n not an ject is dealt with as such under this Chapter and does not object,
tiii™»ubjwMt.ri" the inquiry, commitment, trial or sentence (as the case maybe)
shall not, by reason of such dealing, be invalid.
Right ofBritish
pcan Euro- , , .456.
. . When, any, J European
1 British
i ti subject nis .,■unlawfully
i i • .
minject unlaw- detained in custody by any person, such European nritish subject
toappfytor'or- or any person on his behalf may apply to the High Court which
brought before wou'^ nave jurisdiction over iuch European British subject in
High court. respect of any offence committed by him at the place where he is
detained or to which he would be entitled to appeal from any con
viction for any such offence, for an order directing the person
detaining him to bring him before the High Court to abide such
further order as it may pass.
Procedure on 457. 1 he High Court, if it thinks fit, may, before issuing

"ion. appllc*" such order, inquire, on affidavit or otherwise, into the grounds on
which it is applied for, and grant or refuse such application: or it
may issue the order in the first instance, and, when the person
applying for it is brought before it it may make such further
order in the case as it thinks fit, after such inquiry (if any) as it
thinks necessary.
Territories 458- The High Court may issue such orders throughout
wiUc'hHigh the territories within the local limits of its appellate criminal
«SchtoS,j!''ueju"S(,iction' anu" sucu otuer territories as the (iovernor-Ueneral
in Council may direct.
Application of 459. (i) Unless there is something repugnant in the con-
h^sdictioT'on text, all enactments heretofore or hereafter made by the Governor-
couru'o'^sea- General in Council, which confer on Magistrates or on the Court
of Sessi >n jurisdiction over offences, shall be deemed to apply to
European British subjects, although such persous are not express
ly referred to therein.
(2) Nothing in this section shall be deemed to authorise any
Court to exceed the limits prescribed by this Chapter as to the
amount of punishment which it may inflict on an European
Ss. 455-463.I Special Proceedings. 495
British subject, or to confer jurisdiction on any Magistrate or any

Judge presiding in a Court of Session, not being a Justice of the
Peace.
460. In every cise triable by jury or with the aid of asses- tri"', of
1 • 1 -m / ■ 1 • >-i it • ,• 1 1 fcuiopeaus or
sors, in which an European (not being an European iJritish sub- Americans,
ject) or an American is the accused person, or one of the ' accused
persons, not less than half the number of jurors or assessors shall,
if practicable and it such European or American so claims, be
Europeans or Americans.
461. Whenever an European or American is charged before Jury when
the Court of Session jointly with a person not an European or America!! °r
American and in compliance with a claim mad 3 under section 400 WHhK0fiei°or1
is tried by a jury, or with the aid of a set of assessors, of which at other mce.
least one-half consists of Europeans and Americans, the latter
person shall, if ho so claims, be tried separately.
462. (1) When a trial is to be held before the Court of Summoning
Session in which the accused person, or on 3 of th a accused per- hiK/uronunder
sons, is entitled to be tried by a jury constituted under tlu pro- „cô" 4501 451
visions of section 450 or section 460, or before the Court of a
District Magistrate or Sessions Judge proceeding under section
451, the Court shall, three days at least before the day fixed for
holding such trial, cause tj be summoned, in the manner herein
before prescribed, as many European and American jurors as are
required for the trial.
(2) The Court shall also, at the same time, in like manner,
cause to be summoned the same number of other persons named
in the revised list, unless such number of such other persons has
been already summoned for trials by jury at that session.
(J) From the wholo number of persons returned the jurors
who are to constitute the jury shall be chosen by lot in the manner
prescribed in section 276, until a jury containing the proper
number of Europeans or American*, or a number approaching
thereto as nearly as practicable, has been obtained :
Provided that, in any case in which the proper number of
Europeans and Americans cannot otherwise be obtained, the
Court may, in its discretion, for the purpose of constituting the
jury, summon any person excluded from the list on the ground of
his being exempted under section 320.
463. Criminil proceedings against European British subjects, Conduct 01^
Europeans ivt being European British subjects, and Americans, ceedmirs npunst
before the Court of Session and High Court, shall, except as {j"™i£b'jec£!''"
otherwise expressly provided, be conducted according to the pro- en
visions of this Code.
496 Special Proceedings. [Ch. XXXIV.
CHAPTER XXXLV.
Lunatics.
Procedure in 464' (7) Wheu a Magistrate holding an inquiry or a trial has

te^'Sct1 reason to believe that the accused is of unsound mind and conse
quently incapable of making his defence, the Magistrate shall in
quire into the fact of such unsoundness, and shall cause such per
son to be examined by the Civil Surgeon of the district or such
other medical officer as the Local Government directs, and there
upon shall examine such Surgeon or other officer as a witness
and shall reduce the examination to writing.
(2) If such Magistrate is of opinion that the accuse \ is of
unsound mind and consequently incapable of making his defence,
he shall postpone further proceedings in the case.
CWanderingand [4 (Act XXXVI of 1858). It shall be the duty of every darogah
hiimfics'Sto be or district police-officer to apprehend and send to the Magistrate all
Magistrate— Persons found wandering at large within his district who arc deemed to
Certificate and he lunatics, and all persons believed to be dangerous by reason of
reception in lunacy. Whenever any such person as aforesaid is brought before a
asyium-in Magistrate, the Magistrate, with the assistance of a Medical Officer,
lunatic maybe sh&ll examine such person, and if the Medical Officer shall sign a certi-
the'enreofh? ficate in the form A in the schedule to this Act, and the Magistrate
friends, or sent shall be satisfied on personal examination or other proof that such
asy1uin?]n8e<1 person is a lunatic and a proper person to be detained under care and
treatment, be shall make an order for such lunatic to be received into
the asylum established for the division in which the Magistrate's
jurisdiction is situate, or, if such lunatic is not a native of the country,
and the circumstances of the case so require, into a lunatic asylum at
the Presidency ; and shall send the lunatic in suitable custody to the
asylum mentioned in such order : Provided that, if any friend or relative
of any lunatic, who is believed to be dangerous, shall undertake, in
writing to the satisfaction of the Magistrate, that such lunatic shall be
properly taken care of, and shall be prevented from doing injury to
himself or others, the Magistrate, instead of sending him to an asylum,
may make him over to the care of such friend or relative : Provided,
also, that, if any such friend or relative shall desire that the lunatic
may be sent to a licensed asylum instead of the public asylum of the
division, and shall engage, in writing to the satisfaction of the Magis
trate, to pay the expenses which may be incurred for the lodging, main
tenance, medicine, clothing, and care of the lunatic in such asylum,
the Magistrate may send the lunatic to the licensed asylum mentioned
in the engagement.]
[In case of [5 (Act XXXVI of 1858). If it shall appear to the Magistrate,
treatment of"a ou the report of a police-officer or the information of any other person,
traietmayMo*i5er *â* an? Person within the limits of his jurisdiction deemed to be a
relative. or lunatic is not under proper care and control, or is cruelly treated or
to"maintaind neglected by any relative or other person having the charge of him, the
Sr. 464-465.] Special Proceedings^ 497
Magistrate may send for the supposed lunatic, and summon such him. to provide
relative or other person as has or ought to have the charge of him^ and trX!i!r™t5Tf
if such relative or other person be legally bound to maintain the sup- j)°uj^1r"°nmnin
posed lunatic, the Magistrate may make an order for such lunatic tmn iiim. Mmris-
being properly cared for and treated, and, if such relative or other person n^VrcStion?fn
shall wilfully neglect to comply with the said order, may commit him asylum.]
to jail for a period not exceeding one month. If there be no person
legally bound to maintain the supposed lunatic, or if the Magistrate
think fit so to do, he may proceed as prescribed in the last preceding
section, and, upon being satisfied in manner aforesaid that the person
deemed to be • lunatic is a lunatic and a proper person to be detained
under care and treatment, may make an order for his reception into
Mich asylum as aforesaid. It shall be the duty of every darogah or
district police-officer to report to the Magistrate every such case of neg
lect or cruel treatment as aforesaid which may come to his knowledge.]
[18 (Act XXXVI of 1858). The word "lunatic," as used in [j^™1*'
this Act, shall mean and include every person of unsound mind, and
every person being an idiot.
The word " Magistrate " shall include a person exercising the
powers of a Magistrate.]
». (/) If any person committed for trial before a Court J*5^pen!ii
of Session or a High Court appears to the Court at his trial to be of committed he-
unsound mind and consequently incapable of making his defence, s°e™ion or High
the jury, or the Court with the aid ot assessors, shall, in the first iÎjt'o*'"8
instance, try the fact of snch unsoundness and incapacity, and, if
satisfied of the fact, shall pass judgment accordingly, and there
upon the trial shall be postponed.
(2 1 The trial of the fact of the unsoundness of mind and in
capacity of the accused shall be deemed to be part of his trial
before the Court.
A Sessions Judge, in his charge to the jury, told them that, in his jndg- Insanity -Pro
mpt, the accussdiwaa, at the time of his trial, exhibiting symptoms of u lsound- cedure.
ness of mind, ami he directed them to find whether the accused was insane at
the time he committed tire offence. Held, that the issue as to whether the
accused was of unsound mind at the time of tlie t riaj, and incapable of properly
making his defence, was a preliminary issue to that put by the Sessions Judge,
and should, under section 425 of the Code of Criminal Procedure, 1872, havo
been first submitted to the jury. The Queen v, DoorjodkKn Shamnnto, 19 W.
R., 26 1873).
Held, having regard to provisions of sections 232 and 425 of the Code of In«anity-Pro-
Criminal Procedure, 1H72, that, where an accused person at his tiid appears to rcdure-
the Sessions -Judge to be of unsound mind, the trial of the issue of insanity is
part of tho trial of the accused, and ought to be tried by the jury, and not by
the Sessions Judge personally. The Queen v. Bh.cek.00 Kaliaur, 19 W. K., 15
(1873).
Where a prisoner was declared by the Civil Surgeon to be insane at the i,nnatic-Pro.
time he was called on to make his defence, it was hold that it was irregular to ceduro.
acquit him. Proceedings should have been stayed, and the )>risoner detained
pending the orders of Government. Reference by the Magistrate of Fttrreedpore
in re Okolam Durbenh, 10 \V. B., 37 (1868).
32
498 Special Proceedings [Ch. XXXIV.
Ppieaiôf inna- 466> (1) Whenever an accused person is found to be of

investigation or unsound mind and incapable of making his defence, the Magistrate
t™1' or Court, as the case may be, if the case is one in which bail may
be taken, may release him on sufficient security being given that he
shall bu properly token care of and shall be prevented from doing
injury to himself or to any other person, and for his appeirance
when required before the fi"a;istrate or Court or such officer as the
Magistrate or Court appoints in this behalf.
Custody of lu- ^ ^ne 04156 *s one m which hail may n°t he token, or if
"»tio. sufficient security is not given, the Magistrals or Court shall re
port the case to the Local Government, remanding the accused to
custody pending orders, and the Loc.il Government may order the
accused to be confined in a lunatic asylum, jail or other suitable
place of safe custody, and the Magistrate or Court shall give effect
to such order.
For rules as to detention of supposed lunatics while under ob -
tervation, tee Manual of orders of tiooernment, Ai.-W.P. and Oud/i,
Vol. J, Part VI, p. 162.
Lunatic—Imbe- The provisions of section 186 of the Code of Criminal Procedure, 1872,
cfle—Inability doare not
unable
applyto to
understand
a person who
the proceedings
is of unsound
from
mind
deafness
; theyorapply
dumbness,
to persons
or igno
who
to understand
proceeding*.
rance of the language of the country, or other similar cause. But where the
inability to understand the proceedings is due to unsoundness of mind, the
procedure provided in Chapter XXXI of the Code must be followed. Where
a Magistrate found that an accused person convicted of theft was an imbecile,
and consequently unable to understand the proceedings, but that he was not of
unsound mind, the High Court held that this distinction was without a differ
ence, and, under section 297 of the Code, annulled the conviction, and, declaring
the accused to bo of unsound mind, directed that he should be released on
sufficient security being given that he would be properly taken care of, and
prevented from doing injury to himself or any other person, and for his ap
pearance when required ; and that in default of such security being given,
the case should be reported to Government. Empress v. Huaen, I. L. It., 5
Bom., 262 (1881).
The authority of the Criminal Courts over an accused, declared under sec
Lunatic— tion 426 of the Criminal Procedure Code, 1872, to be of unsound mind, ceases
Becurity—
Jurisdiction ol after the transmission of such accused to the place of safe custody appointed
Court".111 by the Local Government, and such authority can only be revived under the
circumstances mentioned in section 432. The Empress V. Joy Hari Kor,
I. L. B,2Cal., 356 (1877).
Where a Magistrate has kept in custody an insane prisoner and reported
•o"ra*-?»roce- the case to Government, his successor, instead of striking off the case, is
dure. bound to resume the investigation under section 391 of the Code of Criminal
Procedure, 1861. Queen v. Rugltooa, 6 W. R., 3 (1866).
Reromptkmof *67. (/) Whenever an inquiry or a trial is postponed under
taquiryor trial. gection ^ or section 465, the Magistrate or Court, as the case
may be, may at any time resume the inquiry or trial, and r?quire
the accused to appear or be brought before such Magistrate or
Court.
Ss 466-470.] Special Froceediugs. 499
[2) When the accused has been released under sect'on 416,
and the sureties for his appearance produce him to the officer
whom the Magistrate or Court appoints in this behalf, the certifi
cate ' f such officer that the accused is cipable of making his de
fence shall be receivable in evidence.
468* (/) If, when the accused appears or is again brought Pw>oj£j>j* m r_
before the Magistrate or the Court, as the case may be, the Magis- in* lu/oro m«-
trate or Court considers him capable of making his defence, the o'ourt^*'
inquiry or trial shall proceed.
{2> If the Magistrate or Court considers the accused person to

be still incapable of making his defence, the Magistrate or Court
shall again act according to the provisions of section 461 or section
Wo, as the c vse may be.
469. When the accused appears to be of sound mind at the wnenaccmed

lim« of inquiry or trial, and the Magistrate is s tisfiod from the bSSrin.lVe,'^*
evidence given before bim that theie is reason to believe that the
accused committed an act which, if he had been of sound mind,
would have been an offence, and that he was, at the time when the
act was committed, by reason of unsoundness of mind, incipablo
of knowing the nature of the act or that it was, wrong or contrary
to law, the Magistrate shall proceed with the case, and, if the
accused ought to bs committed to the Court of Session or High
Court, send him for trial before the Court of Session or High
Court, as the casa may be.
470. Whenever any person is acquitted upon the ground JJjJgjJJJjV?

that at the time at which he is alleged to have committed an ground o(iun*»
offence, he was, by reason of unsoundness of mind, incapable of CJ"
knowing the nature of the act. alleged as constituting the offence,
or that it was wrong or contrary t > law, the finding shall state spe
cifically whether he committed the act or not.
[84 (P. C). Nothing is an offence which is done by a person who, t*°ti°^|iJ*r,°11
at the time of doing it, by reason of unsoundness of mind, is incapable mind.]
of knowing the nature of the act, or that he is doing what is either wrong
or contrary to law.]
In dealing with a reference made by a Sessions Judge under section 263 of Reference —
the Code of Criminal Procedure, 1872, inconsequence of his disagreeing from I*""1^—Ju*y*
the verdict of the jury, the High CoMri must deal with it as an appeal by the
prosecution, *nd has authority to convict tl>e accused person on the facts, and
to pass sentence accordingly,—section 257 of -he Code, by which the Court
lias to decide which view of the facts is correct, being read as qualified by
section 263. The fact of unsoundness of mind is one which must be clearly
und distinctly proved before any jury is justified in returning a verdict
tinder section 84 of the Penal Code. 'Ike Queen v. Nobin Chtutder Bcmeqee,
20 W. B., 70 (1873).
50o Special Proceedings. [Ch. XXXIV.
Flea, amount- The prisoner having admitted before the Court of Session that be had
not'îHt''6* °' killed hia wife, no assessors were empannelled. At the end, however, of his
° confession he pleaded that he was not in his right mind at the time. The
Judge, therefore, proceeded to record medical and other evidence on the point,
and, having come to the conclusion that there was no reason to doubt from
the prisoner's conduct, either prior or subsequent to the murder, that in com
mitting the murder he knew that he was doing a wrong act, convicted the
prisoner. Held, that the plea was, in effect, one of not guilty, and that the
trial should not have proceeded without assessors, and that it should be
quashed. The Queen v. Cheit Ham, 5N.- W. P. H. C, 1 10 (1873).
Perwn^KquH- 471 • (/) Whenever such judgment states that the accused
rrunnd to be person committed the act alleged, the Magistrate or Court before
custody!*10 whom or which the trial has been held, shall, if such act would,
but for the incapacity found, have constituted an off <nce, order
such person to be kept in safe custody iu such place and manner
as the Magistrate or Court thinks fit, and shall report the case for
the orders of the Local Government.
(2) The Locil Government may order such person to be
confined in a lunatic asylum, jail or other suit ible place of safe
eustody.
Power of Go- (3) The Governor-General in Council may, by gencnl or
Xno5undi™to special order, direct that any person whom the Local Govem-
o^.^"™*^1 ment has ordered under this Chap er to be c >nfined in a lunatic
ftnott by order asylum, jail or other place of safe custody, shall be removed from
mmtio3*?™'- the place where he is confined, to any lunatic asylum, jail or other
on°ev°5lrfo™™ce Place of safe custo(1y in British India.
to another. in
Power of Local '^ne k'xsal Government may empower the officer in
Government to charge of the jail in which a person is c infined under the provi-
tor^Geiionli1^?* sions of section 466 or this section, to discharge all or any of the
tfoiu!" ,uu°" functions of the Inspector-General of Prisons under section 472,
section 478 or section 474.
_ .._ . Where a person under sentence of transportation for life on a conviction
cnaed—Jury— for murder is found guilty of murder on a subsequent and different
Murder-Sen- cbarge, the only sentence that can be passed on him according to section 303,
tenee. Penal Code, is that of death. The prisoner, who was charged with having
committed murder, was found by the jury who tried him to have been of un
sound mind at the time he committed the offence. The Sessions Judge, differ
ing in that point from the jury, referred the case to the High Court under sec
tion 263 of the Code of Criminal Procedure, 1872. Held that, in a case of this
kind, the High Court will not interfere without the very clearest proof that
the jury were mistaken, and that the interests of justice imperatively re
quired the Court to take action under the extraordinary powers conferred tip-
on it by section 263 of the Code. On a consideration of the medical evidence,
the Court declined to interfere with the verdict of acquittal, which the jury
came to. The Queen v. Dooi-jodhun Shamonto, 19 W. K., 45 (1873).
Lunatic pri- 472. When any person is confine I under the provisions of
J?snited 'by0 in- section 466 or section 471. the Inspector-General of Prisons, if
•pector-ciene- such person is confined in a jail, or the visitors of the lunatic
ra asylum, or any two of them, if he is confined in a lunatic asylum,
may visit him iu order to ascertain his state of mind ; and he shall
be visited once at least in every six months by such Inspector-
General or by two of snch visitors as aforesaid ; and such In
spector-General or visitors shall make a special report to the Local
Government as to the state of mind of such person.
473. If such person is confined under the provisions of sec- ^^""Tunatic

tion 466, and such Inspector-Generul <>r visitors shall certify that, JJi^".^^
in his or their opinion, such person is capable of making his defence, of making iua
he shall be taken before the Magistrate or Court, as the case may 8 enca'
be, at such time as the Magistrate or Court appoints, and the Ma
gistrate or Court shall deal with such person under the provisions of
section 468 ; and thecertificate of such Inspector General or visitors
as aforesaid shall be receivable as evidence.
474. (/) If such person is confined under the provisions of EJSSSJ1^Sned

section 466 or section 471, and such Inspector-General or visitors u»«i<r j**1'0^.
shall certify that, in his or their judgment, he may be discharged ciared at to be
without danger of his doing injury to himself or to any other per- d*"*"*-64-
sen. th<» Local Government may tliereup >n order h:m to be dis-
c'nrged, or to be detained in custody, or to be transferred to a
public lunatic asylum if he has not been already sent to such an
asylum; and, in case it orders him to be transferred to an asylum,
may appoint a Commission, consisting of a judicial and two medical
officer.-1.
(2) Such Commission shall make formal inquiry into the state
of mind of such person, taking such evidence as is necessary, and
shall report to the Local Government, which may order his dis
charge or detention as it thinks fit.
475. (/) Whenever any relative or friend of any person P*'iJeryto0j

confined under the provisions of section 466 or section 471 desires of relative,
that he shall be delivered over to his care and custody, the Local
Government, upon the application of such rel itive or friend, and,
on bis giving security to the satisfaction of such Government that
the person delivered shall be properly taken c re of and shall be
prevented from doing injury to himself or to any other person, may
order such person to be delivered to such relative or friend.
(2) Whenever such person is so delivered, it shall be upon

condition that he shall be produced for the inspection of such officer
and at such times as the Local Government directs.
(3) The provisions of sections 472 and 474 shall, mutatis
mutandis, apply to persons delivered , under the provisions of this
section ; and the certificate of the inspecting officer appointed under
this section shall be receivable as evidence.
502 Special Proceedings. [Ch. XXXV.
CHAPTER XXXV.
Proceedings in case or ckrtain Offences affecting

tub Administration of Justice.
Pra»tore(jn^ 476* (7) Wlien any Civil, Criminal or Revenue Court i»
infection i»5. of opinion tbat there is ground for inquiring into any offence refer
red to in section 195, and committ'd before it or brought under its
notice in the c nrse of a judicial proceeding, such Court, af er
making any preliminary inqn ry that may be necessary, may send
the case for inquiry or trial to the nearest Magistrate of the first
class, and may send the accused in cost >dy, or take sufficient se
curity for his appearance, before such Magistrate ; and may bind
over any person to appear and give evidence on such inquiry or
trial.
(2) Such Magistrate shall thereupon proceed according to Ixw,
and as if upon complaint made and recorded under section 21)0, and
may, if he is authorised under section 1^2 to transfer cases,
transfer the inquiry or trial to some other competent Magistrate.
Sanction far pro- The provisions of section 476 of the Criminal Procedure Code, 1882, as
•jHiutioii—Pre-# Well as of section 643 of the Civil Procedure Code, clenrly indicate that the
Ty,--o'ifciice,,|Viy Court taking action under eithersection must not only haveground for emjuiry
dufiniie pernou into an offence of the description referred to in those sections, respectively, but
or perBoin. must also be primdfacie satisfied that the offence has been committed by some
delinite person or persons against whom proceedings in the Criminal Conrtare
to be taken. A Division Bench of the High Court taking the civil buisness of
a particular group has jurisdiction to deal with an order under section 643 of
the Civil Procedure Code made by a Civil Court in any of the districts included
in the group. Mahomed Bhakka v. Queen-Emprett, I. L. K., 23 CaL, 532
(189C).
Enquiry before ^ Magistrate, making an enquiry before issue of an order under the Criini-
Issne oi nn order nal ProeedureCode, 1882, section 144, is acting in a stage of judicial proceeding,
'?".),,"' and has, therefore, jurisdiction to take action under section 476, if he is of
'ffiicinl proceed- opinion that false evidence has been given before him. Queen-Emprest v.
i n k-F a 1 b e Tirunara Simha Ctwtri, I. L. R., 19 Mad., 18 (1895).
erklcnce.
Application by The District Forest Officer applied by letter to the District Magistrate to
letter for aanc- take such action as he deemed fit against one Subbaraya Pillai, who, for rea-
Vuto—Uutricc Bon8 stuted by the District Forest Officer, was suspected of having abetted the
Macistrate'a offence of giving false evidence in the course of proceedings instituted on
hl^pn^ntion Delia'^ °* l',e Forest Department in the Court of a second class Magistrate,
and prescribing The District Magistrate had previously directed that all appeals from the second
the Court in class Magistrate should be heard by the Deputy Magistrate, but he passed nn
■ecutinn tliouhi order himself, whereby he (!) sanctioned th.j prosecution of Subbaraya Pillai,
tukc place. (2) directed that it should take place in the Court of the Head Assistant
Magistrate Held, (1) that the District Magistrate had no jurisdiction to
sanction the prosecution for the reason that he was not the ordinary appellate
authority, (2) that the second part of his order was irregular for tho reasons
that it was not authorised by Criminal Procedure Code, 1882, ►ection 195
and he had no jurisdiction to act under section 476, since the alleged offence
was not brought to his notice in the course of judicial proceeding. Queeu-
Empreu v. Subbaraya Pillai, I. L. R., 18 Mad., 487 (1895).
S. 476.] Special Proceedings. 503
It is not an invariable rule that criminal proceedings should be stayed Enquiry into
during the pendency of civil litigation regarding the same subject-matter. cl*in> to attach.
Certain property was attached in execution of a decree. Thereupon accused civRrtSun,r
No. I applied to have the attachment raised, on the ground that he had power to corn-
purchased the property from the judgment-debtor under a sale-deed executed ^^J^^tf
long before the date of the attachment. In the summary enquiry which was claim or his
made under section 278 of the Code of Civil Procedure (Act XIV of 1882), witness on a
lie produced the sa e-deed, and accused No. 2 was called as his witness and w.d'perjury^''
supported his claim. The Subordinate J dge found that the deed was a Subsequent
forgery, and rejected the claim. Proceeding then under section 478 of the eialman't tcT
Code of Criminal Procedure, 1882, he held the enquiry directed by that establish his
section, and committed both the accused to the Sessions Court on charges of right to the
perjury anil forgery. During the pendency of the enquiry under section 478, ^"mmnal* pro-
die accused No. 1 tiled a civil suit to establish the genuineness of the sale- ceedint* pend-
deed and set aside the attachment. He also applied to the High Court to civl1
quash the commitment or stay the criminal proceedings pending the disposal
of the civil suit. Held, refusing the application, that the mere fact that a
regular suit was filed to establish the genuineness of the sale-deed was not a
sufficient ground for quashing the commitment or for adjourning the trial
pending the hearing of the civil suit. Held, also, that the power given to a
Civil Comt under Chapter XXXYr of the Code of Criminal Procedure, 1882,
to take action regarding " any offeuce referred to in section 195" is not
ordinarily restricted, in regard to offences relating to documents, to such
offences only when committed by a party to the proceeding in which the
document was given in evidence. It extends also to such offences when
committed by a wituess of the party. Ju re Devji Valad Bhavani, I. L. R.,
18 Bombay, 581 (1893).
Where a Deputy Commissioner issued a sanction to prosecute the accused Sanction to pro-
upon an express application made on behalf of a certain person against whom '^"'"j^y
a charge of torture had been made, and which he found, for reasons stated in enquiry,
his judgment, to be false, held, taking the order to have been one made under
section 195 of the Code of Criminal Procedure, 1882, that it was a proper
sanction, inasmuch as it was given to a contemplated prosecution by a defi
nite person. Semble.—On the supposition that the order was one under
section 476 of the Code, that it was not necessary for the validity of an
order under that section that there should be any evidence on the record con
tradicting the case which was thought to be false, or that there should be a pre
liminary enquiry. Although it may sometimes well be that a preliminary
enquiry ought to be held, the adoption of a rigid rule to that effect is neither
rendered imperative by the law nor is it desirable. Baperam Surma v. Gouri
Nath Dull, I. L. B., 20 Cal. 474 (1892).
Certain documents having been put into Court in a suit pending before a Forged docu-
District Munsif, but not given in evidence, the District Munsif made an order menu filed in
for the prosecution of the parties who so put them in, on the ground that the ^"oiieiroiTiy
documents were forgeries : Held (1) that the High Court had power to revise Court,
the proceedings of the District Munsif ; (2) that the District Munsif was not
competent to go beyond the record ; (3) tliat the order was wrong and should
be set aside. Abdul Khadar v. Metro, Saheb, I. L. B , 15 Mad., 224 (1892).
Criminal proceedings for perjury or forgery arising out of a civil litiga- Stay of erimi-
tion should not as a rule go on during the pendency of the litigation. In re Pro,'6C',,",t?
Shri Nana Maharaj, I. L. B., IG Bombay, 729 (1892). penning appea..
Under the general revisional powers conferred by section 439 of the Code order directing
of Criminal Procedure, 1882, a High Court has power to consider the propriety jp osecution—
of an order which purports to be passed under section 4.6 of the Code. tt*vu"<>"-
Where a defendant in a suit in the Court of a Munsif applied to the District
Judge for sanction under section 195 of the Code to prosecute a wituess
504 Special Proceedings. [Ch XXXV.
•who bad given evidence iu tlx? Munsifa Court in support of a dee i, produced
as evidence before the Court, which Imd been found by the Munsif to be »
forgery, and the District Judge refused the application, but, purporting to' act
under section 47C of tlie Code, himself ordered the prosecution of such wit
ness : Held, that tlie Judge's order was made without jurisdiction, the offence
in respect of which the prosecution was directed having been neither com
mitted before him nor brought to his notice in thecourBe of a judicial proceed
ing. Iu re Mathura Das, 1. L. K., 16 All., 80 (1892).
Sanction for The High Court is competent in the exercise of its revisional powers to
prosecution— interfere with an onler of a subordinate Court, whether made under section
Jurimiiction of 195 or under section 47ft of tlie Criminal Procedure Code, 1882, directing tlie
High Court in
revision to prosecution of any person for offences referred to in those sections. Tlie
quash order* High Court under section 439 has tlie piwers conferred on a Conrt of uppeal
under auction by section 423 to alter or reverse any such order. Before a Court is justified
470.
iu making an order under section 47(5, directing the prosecution of any person
it ought to have before it direct evidence, fixing tlje offence upon tlie person
whom it is sought to charge, eitlier in the course of tlie preliminary enquiry
referred to in that section, or in the earlier proceedings out of which the
encjuiry arises. It is not sufficient that the evidence in tl>c earlier erase may
induce some sort of suspicion tl>at the person bad been guilty of an offence ;
but tlicre must be distinct evidence of tlie commission of an offence by person
who is to be prosecuted. When a subordinate Magistrate, after trying a case,
sent the record to tlie District Magistrate with a suggestion that certain
persons ought to be prosecuted under section 21 1 of the Penal Code, tlie High
Court held that this did not constitute a sanction to prosecute. In re Kkepu
Ifath Sikdar v. Grish Chunder Muhetji, I. L. K., lftCal., 730 (1889).
Power of Hijrh Tlie High Court lias no power on appeal to set aside a complaint duly
Court -Onler made by a subordinate Court under section 476 of tlie Code of Criminal Pro
under auction
476 cedure, 1882. Queen-Empress v. Naralcka, I. L. H., 13 Mad., 144 (1889).
Distinction be Section 195 of the Criminal Procedure Code, 1882, distinguishes lietween
tween a anno- the sanction granted by a Court to a prosecution by a private individual, and
tion uranted to a complaint made by the Court itself. A superior Court to which such Court
a private person
and a couiplaiut is subordinate may revoke the sanction granted in the former case to the
by a Court. private prosecution, but it has no power in the latter case to set aside a com
plaint made by a subordinate Court. Queen- Empress v. Rachappa ; Queen-
Empress v. Trappa, I. L. R., 13 Bom., 109 (1888).
8 mction - Com- On the 2nd August, 1884, a Munsif who was of opinion that, in tlie courste
plaint. of a suit which had been tried before him, certain persons had committed
offences under sections 196, 463, and 471 of the Penal Code, und that the
prosecution of these persons was desirable, made an order which lie described
or passed under section 643 of the Civil Procedure Code, and in which he
directed that the accused should be sent to the Magistrate, and that the Magis
trate should enquire into the matter. In May, 1885, upon an application by
one of the accused to the District Court to " revoke the sanction for prosecu
tion granted by the Munsif." it was contended that the " sanction " had ex
pired on the 2nd Febtnary 1885, and had ceased to have effect. Held by the
Pull Bench that the Munsif'a order, whether it was or was not a sanction,
w is a sufficient "complaint " within the meaning of section 195 of the Cri
minal Procedure Code, 1882, and that the limitation prescribed by that section
was not applicable to the case. Per Pktheram, C. J., and Straight, J.— That,
considering that section 643 of the Civil Procedure Code was closely similar
to section 470 of the Criminal Procedure Code, the Munsif's order might be
taken as having been passed under the latter section. Also per Petheram, C.
J , and Straight, J.—Tlie words in section 195 of the Criminal Procedure
Code, " except with the previous sanction or on the complaiut of the public
servant concerned," must be read in connection with section 476, which w as
S 476.] Special Proceedings,
enacted with tlie object of avoiding the inconvenience which might be caused
if a Munsif, or a Subordinate Judge, or a Judge, were obliged to appear before
a Magistrate and make a complaint on oath, like an ordinary complainant, in
order to lay the foundation for a prosecution. The language of section 476
indicates that where a Court is acting under section 195, a complaint in the
strict sense of the Code is not required, and that the procedure therein laid
down constitutes the '' complaint " mentioned in section 195. Ishri Prasad
v. Sham Lvl, I. L. R., 7 All., 871 (1885).
Before granting a sanction to prosecute under section 195 of the Code of Sanction to pro-
Criminal
has been Procedure,
committed, 1882,
but ita isCourt is bound
not bound to any
to hold satisfy itselfasthat
inquiry an the
to all offence
per- ^"^T0"^!
** y 1 e
sons who may be implicated in such offence. In re Govinc'a* Nayar, I. L. R.,
7 Mad., 224 (1883).
A Magistrate of the first-class, after considering the result of an invest!- Sanction to pro-
gation by a police-officer under section 202 of the Code of Criminal Proce- wcuto—J1™]
dure, 1882, dismissed a complaint as false, and passed an order sanctioning the'truth
the prosecution of the complainant for an offence punishable under section 21 1 of complaint,
of the Penal Code, and directed a third-class Magistrate to hold a preliminary
enquiry, the offence being cognizable by the Court of Sessions only. Held
that, as there was no application before the first-class Magistrate for sanction
to prosecute, the order must be taken to bo a complaint made by the said Ma
gistrate, and therefore, under section 47G of the Code, the third-class Magis
trate had no jurisdiction to hold an enquiry. Held, also, that the first-class
Magistrate ought to have held a preliminary enquiry under section 476 in order
that the complainant might have an opportunity of showing the truth or bond
Jules of the complaint. The Queen v. Yendava Chandramma, 1. L. R., 7
Mad., 189 (1883).
A man died leaving some money due to him in the hands of the Telegraph False evidence -
authorities. P wrote a letter to those authorities claiming the money, as the "ij?ici*!. pro"
sole heir of the deceased. This letter was sent to the District Judge for veri- 0 "B*
fication and orders. P supported his claim before the Judge by the evidence
on oath of C. Cs evidence being, in the opinion of the District Judge, false,
the District Judge, in his capacity as Sessions Judge, tried him for giving
false evidence, and convicted him of that offence. Held that, as the reference
to the District Judge by the Telegraph authorities of P't letter for verification,
and subsequent action in regard thereto, did not constitute a " judicial pro
ceeding," and as the District Judge had not any authority to administer an oath
to C, the conviction was illegal. Held also, that the District Judge had no
jurisdiction, under section 477 of the Code of Criminal Procedure, 1882, to
try C. Empress v. Chait Ram, I. L. R., 6 AIL, 103 (1883).
An order made under section 471 of the Code of Criminal Procedure, 1872, Preliminary en-
ssnding a case for enquiry to Magistrate, is not necessarily bad because the <,ulrv-
Court did not make a preliminary enquiry before making such order. The law
requires only such preliminary enquiry " as may be necessary." Held, there
fore, where a Munsif, being of opinion that both the parties to a suit tried by
him had given false evidence therein on certain points, sent the case for
enquiry to the Magistrate under section 471 of the Code with a proceeding
embodying the facts of the case, and charging the parties, respectively, with
giving false evidence on such points, and there was nothing to show that any
enquiry that the Munsif could have made was necessary, or would have put
the Magistrate into a better position for dealing with the case than he was in,
that the Munsif's proceedings were not bad because he did not hold a prelimi
nary enquiry. Empress of India v. Juala Prasad, I. L. R., 5 All., 62 (1882).
A Magistrate should not direct a prosecutor to be put upon his trial under Sanction to pro-
section 211 of the Penal Code without first giving him an opportunity of ob- ^"o^^10^"
taining a judicial enquiry into the charge originally preferred by him. The charge. *"
506 Special Proceedings. [Ch. XXXV.
sanction to prosecute, contemplated in section 468 of the Criminal Procedure
Code, 1872, ia not a direction to prosecute, but is a permission granted to a
private person to exercise his own unfettered discretion as to whether he will
take proceedings or not. In re Giridhari Mondul v. Uchit Jha, I. L fi., 8
Cal., 4:15 (1881).
Falsa charge - Where a charge had been preferred against a person and the Magistrate
Dismissal before whom it was heard, after hearing the statement of the complainant, but
VroS'ution'un- n0'" lno3e °^ n'8 witnesses, dismissed the complaint, and subsequently, on the
dar section ill. application of the person charged, granted him leave under section 470 to pro
secute the complainant for bringing a false charge : Held, that the proceedings
were not irregular, and that the Magistrate was justified in acting as he had
done. Held also, that there is a distinction in the proceedings to be adopted
when a sanction is given under section 470, and the institution by the Court of
its own motion of proceedings under section 471. Gyan Ckunder Roy v. Pro-
tap Chumler Datt, I. L. B., 7 Cal., 208 (1881).
Opportunity of Upon a trial for bringing a false charge with intent to injure, it appeared
substantiating that the original complaint was lodged in the Court of the Extra Assistant
c arge. Commissioner, and a local enquiry, by a competent police-officer, was directed.
The officer reported that the charge was false, and recommended that the
prisoner should be prosecuted. The Extra Assistant Commissioner ordered
the papere to be sent to the Deputy Commissioner, who ordered the pro
secution, and the prisoner was convicted. Held, that the conviction was
bad. The Extra Assistant Commissioner should, on receipt of this report
of the police, have communicated its contents to the prisoner, and afforded
her an opportunity of substantiating her complaint, and should then have
decided the case. The Emprett v. Grith Chunder Nmxdi, I. L. R., 7 Cal., 8/
(1881).
Sanction for A. sanction for a prosecution for making a false charge under sectbn 211
prowcution for 0f the Penal Code, without hearing all the witnesses whom the person accused
malung false of ma].;ng t|ie fa]ge charge wishes to produce, is illegal. The High Court
has power to quash an illegal commitment at any stage of the case. The
Emprett v. Shibo Behara, I. L. K., 6 Cal., 584 (1881).
False charge - A. charge laid against certain persons before the police having been re-
Coinpluint be- ported false by that body, the person who made the charge complained to
—"iresfuStfon tne Magistrate of the district, who directed a fresh investigation. The
of chanrc made charge was again reported false. The complainant thereupon tiled a peti-
PoMce re°''ru— t'0"' m wmcn 'le alleged that the second investigation had not been properly
Procedure. conducted, and asked that further evidence might be taken by a specified
officer. No further investigation having taken place, the complainant waa
» -ordered to be prosecuted under section 211 of the Penal Code, and on trial
was convicted and sentenced. On appeal to the High Court, it was held, that
the conviction was illegal, inasmuch as an opportunity had not been afforded
to the accused of producing all his evidence in support of the charge made
by him. Per Maclean, J.—The proper principle which should guide a
Magistrate is, that if no complaint is made before him after a reasonable
time has elapsed from the conclusion of a police enquiry, he would be
justified in procee ling against a person who has made complaint to the
police which has been found to be false ; but if a complaint is made, that
complaint must be dealt with judicially. It is unfair even then to proceed
against the complainant without hearing any witnesses whom he may wish to
examine. Per Mitter, J.—Although a Magistrate has power under section
147 of the Criminal Procedure Code, 1872, to dismiss a complaint without
examining witnesses, yet in such a case no sanction for prosecution, under
section 211 of the Penal Code, should be granted. In re Chukradar Potti,
8 Cal. L. K., 289 (1881).
Where a Civil Court directs an enquiry to be made by the Magistrate of Enquiry -Civil
the District under section 471 of the Code of Criminal Procedure, 1872, in Court,
respect to the evidence given by the witnesses in a case before it, the High
Court cannot as a Civil Court on appeal interfere. Umbica Sunduri Chow-
dhrain v. Ajittdla Mondul, 8 Cal. L. B., 148 (1881).
Where a Magistrate committed a person, charged with perjury in a trial Commitment to
before himself, to the Sessions without examining the witnesses for the Sessions witli-
prosecution : Held, that the commitment was illegal. The Queen v. Chinna °iJ>neoi"»ita-
Vedagiri Chetti, I. L. R., 4 Mad , 227 (1881). noun.
Vi here a Magistrate dismisses a complaint as a false one under section ftiw charge.
147 of the Code of Criminal Procedure, 1872, and decides to proceed
against the complainant under section 471 for making a false charge, he is
not bound, before so proceeding, to give the complainant an opportunity
of substantiating the truth of the complaint, by being allowed to produce evi
dence before him. Empress of India v. Bhawani Frasad, I. L. K., 4
All., 182 (1881).
Before a person can be put upon his trial for making a false charge ^^jj^"*],0",^
under section 211 of the Penal Code, he must be allowed an opportunity of charge—Opiwr•
proving the truth of the complaint made by him ; and such an opportunity tunity to »c-
should be afforded to him, if he desires to take advantage of it, not before trJeMûth 0™*
the police but before the Magistral*. Magistrates should clearly understand charge,
that, whilst the police perforin their proper duty in collecting evidence, it is
the function of the Magistrate alone to decide upon the sufficiency or credibi
lity of such evidence when collected. The Government v. Karimdad,
I. L. R., 6 Cal., 496 (1880).
If, in the course of a proceeding, either civil or criminal, a Judge or Ma- institution of
gistrate finds clear ground for believing that either the parties to the pro- criminal prase-
feeding or their witnesses have committed perjury or any other offence against JpJj£[J /jf''^j",1}
public justice, he is justified in directing criminal proceedings against Court,
such person under section 471 of the Criminal Procedure Code, 1872,
without any further enquiry than that which he has already held in his own
Court. As a matter of discretion and propriety, it is right for a Court, be
fore committing a person on a charge of perjury upon his own uncontra
dicted statement, to await the hearing of the appeal, where an appeal is pend
ing, in the case in which he is charged with such perjury. In re Mutty Lull
Ghose, I. L. R., 6 Cal., 308 (1880).
Where a person has instituted n charge found to be fulse by the police, False charge—
a Magistrate, except under exceptional circumstances, is not justified, merely ctûre—uolice"
on a perusal of a police report which has formed a charge made to be false, in rejwrt.
prosecuting the person by whom such charge was preferred, summarily, un
der Bection 182 of the Penal Code, but should proceed under section 211.
When a charge is pronounced false by the police, no proceedings should be
taken by a Magistrate, suo motu, until a reasonable interval has shown that
the complainant accepts the result of the investigation. In re Russiek Lai
Mullick, 7 Cul. L. R., 382 (1880).
There is nothing in section 211 of the Penal Code which limits the penalty Pj*1*6!^ be"
there imposed to cases in which attempts have been made to substantiate , -f |,u 'co
false charges in a Court of Justice. A false charge made before the police
is therefore punishable under this section. Ashrof Ali v. The Empress,
I. L. R., 5 Cal., 281 (1879).
A charge of burglary and theft having been preferred against two per- Prosecution—
sons, the Magistrate through whom the charge was laid, after comparing the SnJjtn°' t^0™
petition of complaint with the papers submitted to him by the police, who had
made an enquiry and reported the charge to be false, directed, without having
5o8 Special Proceedings. [Ch. XXXV.
taken the examination of the complainant, that the case should be struck out,
and that the proceedings should be instituted against the complainant under
section 182 of the Penal Code. Proceedings were accordingly taken, and
the complainant was ultimately tried and found guilty of an offence under
section 211. Held, on appeal, that the proceedings had been irregular and
should be quashed ; that the Magistrate should be directed to re-open the
enquiry into the charge of burglary and theft, first examining the complainant;
and that, if after such examination he shoul i be of opinion that the charge was
false, the appellant might be proceeded against under section 211 of the Penal
Code. In re Biyogi Bhagut, 4 Cal. L. H., 134 (1879).
Pa'ws charge— A petition was presented to the Joint Magistrate charging the police
Preliminary with having made a false report of an investigation which they had been
enquiry. directed to make at the instance of the petitioner. The Joint Magistrate
after reading the police report, rejected the petition, and directed the peti
tioner to be prosecuted under section 211 of the Penal Code for having made
a false charge : Held, that the Joint Magistrate should not have made the order
without first instituting an enquiry into the truth of the complaint, such as is
required by section 471 of the Code of Criminal Proceedure, 1872. Ime
ChoMaie Telee, 2 Cal. L. R., 315 (1878).
False charge To constitute the offence of making a false charge under section 21 1 of the
Penal Code, it is enough that the false charge is made, though no prosecution
is instituted thereon. Empress of India v. Abul Hasan, I. L. R., 1 All., 4it7
(1877).
Order sending Although section 16 of Act XXIII of 1861 give Civil Courts powers
ca»e to Magis- similar to tho?e conferred on Civil and Criminal Courts alike by sectiou 471
tratelorenquir- 0f U,e Code of Criminal Procedure, 1872, the whole law as to the procedure
ot giving false 111 cases within those sections is now embodied in section 471 of the Oooe.
evidence. In a suit brought to recover possession of certain property, the Judge decided
one of the issues raised in the plaintiff's favour, but on the important issue as
to whether the plaintiff ever had possession, he found for the defendant.
The plaintiff was not examined, but on the issue as to possession he called
two witnesses. The Judge disbelieved their .statements, and considering
that the plaintiff had failed to prove his case, he gave judgment for the de
fendant, without requiring hiin to give evidence on that issue. In the con
cluding paragraph of his judgment, the Judge directed the depositions of the
two witnesses above referred to, together with the English Memorandum of
their evidence, to be sent to the Magistrate with a view to his enquiring whe
ther or not they had voluntarily given false evidence in a judicial proceeding,
and he further directed the Magistrate to enquire whether or not the plaintiff
had abetted the offence of giving false evidence, on the ground that as the
witnesses were the plaintiff's servants, he must personally have influenced
them, and also to enquire whether the plaint which the plaintiff had attested
contained averments which he knew to be false. On a motion to quash this
order, held that, under section 471 of the Code, the Judge has no power to
Bend a case to a Magistrate except when, after having made such preliminary
enquiry as may be ncccssury, he is of opinion that there is sufficient ground
(i.e., ground of a nature higher than mere surmise or suspicion) for directing
judicial enquiry into the matter of a specific charge, and that the Judge is
bound to indicate the particular statements or averments in respect of which
he considers that there is ground for a charge into which the Magistrate ought
to enquire, and that the order was bad because the Judge had made no pre
liminary enquiry, and because it was too vague and general in its character.
The Queen v. Baijoo Lull, I. L. R., 1 Cal., 450 (1876).
Proiecution for The sanction of a Court to a prosecution for a false charge is necessary
false charge. when the offence has been committed before such Court, aud not otherwise;
S. 477 ] Special Proceedings. 509
and a judiciul finding of the falsehood of a charge is not indispensable to
such a prosecution. Ram Jiunjun Bhandari v. Madhub Ghose, 25 VV. K.,
33 (1876).
A complaint made at a police-station is not made before any Civil or complaint at ■
Criminal Court, and if it proves fake, prosecution for it does not re- police-ttation.
quire tho sunction of any Court under section 468 of the Codo of Criminal
Procedure, 1872. The Government of Bengal v. Gokool Chunder Choiodhry,
24 W. H., 41 (1875).
Under section 471 of the Criminal Procedure Code, 1872, the Court must Preliminary en-
first make a preliminary enquiry to satisfy itself that a specific charge coming quiry.
under the section mentioned in it ought to be preferred against the accused;
and, after so satisfied, it must either commit the rate, or send the case, to the
Mugistate for enquiry, whether a committal should be made or not. In re
Kali troiunno Bagchee, 23 W. B., 33 (1875).
A Civil Court may, under section 171 of the Code of Criminal Procedure, Civil Court—
1861, transfer a case to the Criminal Court for investigation without specify- Ohjw Com*
ing the particular officer by whom it is to be investigated; and the deposition pal" '
of the Civil Court officer setting forth the charge on which he transferred the
case to the Criminal Court is a sufficient complaint. The Queen v. Madhub
thunder Miner, 13 W. R., 45 (1870).
It is not necessary that the preliminary enquiry contemplated by section Preliminary e»-
171 of the Code of Criminal Procedure, 1861, Hliould be conducted in the Quiry.
presence of the accused. All the Court (Revenue in this case) making the
enquiry has to do is to satisfy itself that there are prima facie grounds for
sending the case for investigation to a Magistrate, and the Collector is not
bound to dispose of a case of contempt of the lawful authority of a public
servant, under section 147, Act X of 1859, but it is discretionary with him to
proceed under section 171 of the Code of Criminal Procedure. Letterfrom
the Session* Judge of Rooghly, submitting a letter from the Magistrate of
Hotcrah, 9 W. R., 3 (1868).
477. (/) Subject to the provisions of section 444, a Court Power of court
of Session may charge a person for any ofience referred to in txX ofTen"*'0
section 195 and committed before it. or brought under its notice i^feijjj be"
in the course of a judicial proceeding, and may ommit, or admit
to bail and try, such person upon its own charge.
(2) Such Conrt may direct the Magistrate to cause the
attendance of any witnesses for the purposes of the trial.
A Sessions Judge is not debarred by section 487 of the Criminal Pro- Sanction to
cedure Code, 1882, from trying a person for an offence punishuble under sec- B™tric" Juuko—
tion 196 of the Penal Code, when he 1 a<. as District Judge, given sanction for Triul liv nine
the prosecution under the provisions of section 195 of the Code. Queen- J,udJ6,ai^f"*
Empress v. Sarat Chandra Kakhit, I. L. R., 16 Cab, 766 ^889). 0 ^
A complainant applied to a Mnnsif for sanction to prosecute a decree- Criminal ap-
holder for an offence under section 210 of the Penal Code, and, upon the Mun- JfJ, District
sif's refusing such application, preferred an appeal to the District Judge, who Ju'uVo who baa
granted the sanction asked for. Tho decree-holder, having been prosecuted gl'JJ1™'
and convicted before a Deputy Magistrate, preferred an appeal, which came secute.
on for hearing before, and was disposed of by, the some District Judge who
had granted the sanction Held, that th« words, " shall try any person," as
used in section 487 of the Code of Criminal Procedure, 1882, include the
hearing of an appeal, and that the hearing of the appeal from the order of tho
Special Proceedings. [Ch. XXXV.
Munsif refusing sanction was a judicial proceeding within the ■ meaning of
the Code, and consequently that under the provisions of section 487, the Dis
trict Judge had no jurisdiction to entertain the appeal against the judgment
and sentence passed by the Deputy Magistrate. Ifadhub Chmuler Mozumdar
v. Novoileep Chunder Pundit, I. L. R., 16 Cal., 121 (1888).
PalieJudicial
evidence
pro- graphA authorities.
man died leaving
P wrotesome money due to him in theclaiming
hands ofthe
themoney
Tele-
—•• a letter to those authorities
c '"*■ as the sole heir of the deceased. This letter was sent to the District Judge for
verification and orders. P supported bis cl im before the Judge by the
evidence on oath of C. Cs evidence being, in the opinion of the District
Judge, false, the District Judge, in his capacity as Sessions Judge, tried Lira
for giving false evidence, and convicted him of that offence. Held that, as
the reference to the District Judge by the Telegraph authorities of P'l letter
for verification, and the subsequent action in regard thereto, did not constitute
a " judicial proceeding," and as the District Judge had not any authority to
administer an oath to C, the conviction was illegal. Held also, that the District
Judge had no jurisdiction, under section 457 of the Criminal Procedure Code,
1882, to try C. Empress v. Chait Ram, I. L. K., 6 All., 103 (1883).
Power of lame A District Judge who has, on hearing a civil appeal, sanctioned the
SonT'judKeto prosecution of a party for forgery, is i ot debarred by section 473 of the Code
try the offence, of Criminal Procedure, 1872, fiom trying the offence in his capacity of a
Sessions Judge Empress v. Gasper D'Silva, I. L. R., 6 Bom., 479 (1882).
C art f Sea ' ^ '8 'n cases exc'U8ive'y triable by a Court of Session that such
—Commitment? Court has power to commit or hold to bail and try an accused person charged
with the offences mentioned in sections 467, 468, and 469 of the Code of Cri
minal Procedure, 1872. The words " commit the case itself," occurring in sec
tion 471, do not empower a Court of Session to commit to itself a persoa
charged with giving false evidence before it, under section 193 of the Penal
Code. In re Fata lyah Khan, 3 Cal. L. R., 599 (1879).
Seaaiona Judge- Under section 472 of the Code of Criminal Procedure, 1872, before a Sea-
Commitment. gjonH Judge can commit a person to the Court of Session, it is necessary that
the offence should have been committed before the Sessions Court, and that it
be one within the cognizance of, and triable exclusively by, that Court. The
Quten v. Unnath Butulhoo Banerjee, 2 \V. R., 37 (1874).
Court of Session CourtInofcase
-"commitment,
of giving false evidence by making contradictory statements, «
Session cannot, without making further enquiry, commit a person for
' trial under section 172 of the Code of Criminal Procedure, 1861, when both
contradictory stat ments are not made before it. By the words " under its
own cognizance" in that section it is meant to provide for a case where it h
brought under the notice of the Court of Session in the course of a judicial
proceeding that the crime with which the party is to be charged has been
committed by hiin. The Queen v. Nomal, 12 W. R., 69 (1869).
Court of Seaaion The power of commitment conferred on a Court of Session by section
-Commitment. !72 0f the Code of Criminal Procedure, 1801, is confined to offences com
mitted before itself. The Queen v. Moli Khowa, U W. R., 31 (1869).
Power of Civil 478. </ ) When any such offence is committed before any
Court»etoncom. Civil or Revenue Court, or brought under the notice of any Civil
Jndtecom<1mit'to or Revenue Court in the cou se of a judicial proceeding, and the
or^Stof 0386 *s t^'We exclusively by the High Court or Court of Session,
Beasion. or such Civil or Revenue Court thinks that it ought to be tried
by the High Court or Court of Session, such Civil or Revenne
Court may, instead of sending the case under section 476 to a
Ss. 478-480.] Special Proceedings.
Magistrate for inquiry, itself complete the inquiry, and commit or

hold to hail the accused person to take his trial before the High
Court or Court of SessioD, as the case may be.
(2) For the purposes of an inquiry under this section the
Civil or Revenue Court may, subject to the provisions of section
443, exercise all the powers of a Magistrate ; and its proceedings
in such inquiry shall be conducted as nearly as may be in accor
dance with the provisions of Chupter XVIII, and shall be deemed
to have been held by a Magistrate.
Certain documents were filed annexed to a petition in a suit pending Forged docn-
before a Munsif, but were not given in evidence. The Munsif on suspicion court-?Order
that they had been tampered witli held an enquiry and committed the peti- ol commitment
tioners for trial by the Court of Session. Held, that it was a proper commit- ,or tr'*'-
ment under section 478 of the Criminal Procedure Code, 1882. The words
" any such offence " in that section means an offence referred to in sec
tion 195 of the Code, and not an offence referred to in that section quali
fied by the circumstances under which it is committed. Akhil Chandra D«
v. The Queen-Empreti, I. L. R., 22 Cal., 1004 (1895).
The granting of a sanction to a private person under clause (c) of section Sanction îvon
195 of the Code of Criminal Procedure, 1882, does not debar a Civil Court from to * private
proceeding under section 478; nor can the dismissal by a Magistrate of a JJfJf1 „ Dismis- 'J.
ooin-
complaint made by a private person be held to be a bar, till set aside, to a plaint by a
proceeding under that section Queen-Empreti v. Shankar, I. L. B., 13 Bom., ',riy.at.e l*"""0"
□01 „flil^ ' no bar to pro-
00* l^lOooJ. ceemngs under
section 478.
Where a Magistrate committed a person, charged with perjury in a trial, Commitment
before himself, to the Sessions without examining the witnesses for the prose- îôu'texamin-
cution : Held, that the commitment was illegal The Queen v. Chinna mion of
Vedagiri Chetti, I. L. R , 4 Mad., 227 (1881). witues.es.
A Civil Court has no power to order the commitment of persw.s fgr civil Court-
offences under sections 471, 465, and 193 of the Penal Code, without holding Commitment,
the preliminary enquiry required by section 474 of the Code of Criminal
Procedure, 1872. The Queen v. Rungatoonre, 22 W. R., 5i (1874).
479. When any such commitment is made by n Civil or Procedure ot
Revenue Court, the Court shall send the charge with the ordjr of mie' courtTn
commitment and the reord of the case to the Presidency Magis- »uch <=««»•
trate, District Magistrate or other Magistrate authorised to com
mit for trial, and such Magistrate shall bring the case before the
High Court or Court of Session, as the case may be, together with
the witnesses for the prosecution and defence.
480. (1) When any such offence as is described in section Procedure in

175, section 178, sectbn 179, section 180 or section 228 of the contempt*."6* °'
Indian Penal Code is committed in the view or presence of any
Civil, Criminal or Revenue C< urt, the Court may cause the offen
der, whe-her he is an European British subject or not, to be
detained in custody ; and ut any time before the rising of the
Court on the same day may, if it thinks fit, take cognizance of the
S'2 Special Proceedings, [Ch. XXXV.
offence and sentence the offender to fine not exceeding two hund
red rupees, and, in default of payment, to simple imprisonment
for a term which may extend to one month, unless such fine be
sooner paid.
(2) Nothing in section 443 or section 444 shall he deemed to
apply to proceedings under this section.
Forform of warrant of commitment in certain easel of contempt
when a fine it imposed, tee schedule V, A7o. 38.
InniltinK a Ma- The accused intentionally insulted a village Munsif in the discharge
*" ™S ,lll*e of his magisterial duties : the village Munsif did not prefer a complaint or
sanction a prosecution, but a second-class Magistrate charged the accused
under the Penal Code, section 228, on u police report and convicted him : Held,
(1) that the Criminal Procedure Code, 1882, sections 480—482, do not apply to
village Munsifs ; (2) that the second-class Magistrate wag competent to try
the complaint, and the conviction was right. Queen- Empress v. Venkatasaml,
L L. R., 15 Mad., 131 (1891 ).
A Court other than the High Court, &c, can try persons for offences
3 nrisdiction of committed before itself only in cases to which section 477, 480 or 485 is ap
Courts other
than High plicable, and none of these sections is applicable when the accused is charged
Court. under section 175 of the Penal Code. Queen-Empress v. Seshayya, I. L. U.,
13 Mad., 24 (1889).
Contempt ot The procedure laid down in section 480 of the Criminal Procedure Code,
Court 1882, should be strictly followed. The provisions of the section should be
applied then and there, at any rate before its rising, by the Court in whose
view or presence a contempt has been committed which it considers should
be dealt with under section 480. Where a Magistrate, in whose presence
contempt was committed, took cognizance of the offence immediately, but, in
order to give the accused an opportunity of showing cause, postponed his
final order for some days, held, that such action, though it might be irregular,
was not illegal, and, as the accused hud not been in any way prejudiced, was
covered by section 537 of the Code. Held also that, under the circumstances,
it was doubtful whether there was an}' necessity for the Magistrate to post-
postpone the final order until the accused had an opportunity of showing
cause against it, and that he should have directed the detention of the ac
cused, and dealt with the matter at once or before his rising. Queen-Empress
v. Paiambar Bahhsh, I. L. It., 11 All., 361 (1889).
Prevarication by a witness may, though it does not necessarily, amount
Preyarication. to contempt of Court within the meaning of section 228 of the Penal Code
and section 435 of the Code of Criminal Procedure, 1872. Reg. v. Jaimal
Shraran, 10 Bom. H. C, 69 (.1873).
Contempt ot tionedWhere in punishing for contempt of Court, the summary procedure sanc
by section 163 of the Code of Criminal Procedure, 1861, is followed,
Court Bail—
Interruption to the Court must sit as the Court before which the offence was committed, and
public rerrant. not in any other capacity, and is bound to take cognizance of the contempt
on the day on which it was committed. In such a case imprisonment cannot
be added to fine as a punishment. In a case which is not dealt in a summary
manner, the offence must, under section 163, be tried by an officer other than
the person before whom the contempt was committed. An officer before
whom, whilst acting in a particular capacity, an offence under section 223 of
the Penal Code is committed, cannot in another capacity take up and try the
offence. In a case of contempt, the Court before wliich the offence is com
mitted is bound, under section 163 of the Code of Criminal Procedure, 1861,
Ss. 48 1-482.] Special Proceedings. 5•3
to accept bail if sufficient bail is tendered. Where a Deputy Magistrate baa

once made an order transferring a case for trial to the Magistrate, be lias no
power to cancel the order and re-placc the case on bis own file. A Magistrate
has no authority to issue simultaneously a summons and a warrant to a wit
ness, nor can he issue a warrant under section 188 of the Code, unless he bus
a reason to believe that the witness will not attend in obedience to a summons.
The Queen v. Chunder Seekur Roy, 12 W. B., 18 (1869).
A Criminal Court inflicting a fine for contempt of Court should specifically
record its reason, its reasons and the facts constituting the contempt, with any ur
statement the offender may make, as well as the finding • nd sentence.
Where this course was not adopted, the High Court set aside the order inflict
ing a fine. In re Pauchanada Tambiran, 4 Mad. H. C, 229 (1869).
An appeal lies againRt an order of the Sessions Court imposing a fine upon jL^^/j?™ al>
a witness under section 228 of the Penal Code for intentional insult to the
Sessions Judge sitting in a stage of a judicial proceeding. Where the High
Court were satisfied that the witness did not intend to insult the Judge the
order was set aside. In re K. Chappu Menon, 4 Mad. H. C, 146 (1868).
Held, that refusing or neglecting to return direct answers to questions Refusing to
does not constitute the offence, under section 228 of the Penal Code, of in- aiwwcr ques-
tcntionally offering insult or causing interruption to a public servant sitting llon8,
in a judicial proceeding Reg. v. Paidu bin Velhoji, 4 Bom. II. C.| (Croicn
Casus) 7 (1867).
Held, that prevarication while giving evidence does not constitute the Prevarication-
offence, under section 228 of the Penal Code, of intentionally causing in- Evidence,
torruption to a public servant sitting in a judicial proceeding. Reg. v. Auba
bin Bhivrac, 4 Bom. H. C , (Crown Cases) 6 (1867).
481. (1) In every such case the Court shall record the facts Record in luch
constituting the offence, with the statement (if any) made by the
offender, as well as the finding and sentence.
(2) If the offence is under section 228 of the Indian Penal
Code, the record shall show the nature and stage of the judicial
proceeding in which the Court interrupted or insulted was sitting,
and the nature of the interruption or insult.
482. (2) If the Court in any case considers that a persoirl»?c*edure

accused of any of the offences referred to in section 480 and com - toScts that
mitted in its view or presenca should be imprisoned otherwise bo'denitUwith°t
than in default of payment of fine, or that a fine exceeding two imuer section
hundred rupees should be imposed upon him, or such Court is for *80'
any other reason of opinion that the case should not be disposed
of under section 480, such Court, after recording the facts con
stituting the offence and the statement of the accused as herein
before provided, may forward the case to a Magistrate having juris
diction to try the same, and may require security to be given for
the appearance of such accused person before such Magistrate, or,
if sufficient security is not given, shall forward such person in cus
tody to such Magistrate.
33
Special Proceedings. [Ch. XXXV.
(2) The Magistrate to whom any case is forwarded under

this section, shall procaed to hear the compliant against the accus
ed person in manner hereinbefore provided.
when Registrar 483. When the Loc.il Government so directs, any Regis-
trartobe^cm- trar or anv Sub-Registrar appointed under the Indian Registration
withm'ôni Act>* 187 7- s,,a11 be deemed to be a Civil Court within the mean-
«o and 482. jng of sections 480 and 482.
Discharge ol 484. When any Court has under section 480 adjudged an
offender on offender to punishment for refusing or omiting to do anything
submission or
upology. which he was lawfully required to do. or for any intenti >nal insult
or interruption, the Court may. in its discretion, discharge the
offender or remit the punishment on his submission t > the order or
requisition of such Court, or on apology being made to its satis
faction.
Imprisonment) 485. If any witness or persm called to produce a docu
or committal of ment or thing before a Criminal Court refuses to answer such
penton refusing
to answer or
produce docu questions as are put to him or to produce any d icument or thing
ment. in his possession or power which the Court requires him to pro
duce, and does not offer any reasonable excuse for such refusal,
such Court may, for reasons to be recorded in writing, sentence
him to simple imprisonment, or by warrant under the hand of the
presiding Magistrate or Judge commit him to the custody of an
officer of the Court, for any term not exceeding seven days, unless
in the meantime such person consents to be examined and to
answer, or to produce the document or thing. In the event of
his persisting in his refusal, he may be dealt with according to the
provisions of section 48!) or section 482, and in the case of a
Court established by Royal Charter, shall be deemed guilty of a
contempt.
For form of Magistrate b or Judge's warrant of commitment of
witness refuting to answer, see schedule V, No. 39.
Complainant A complainant is not a witness punishable for refusal to answer under
not a witness section 485 of the Code of Criminal Procedure, 1882, or under section 179 of
punishable for the Penal Code. In re Ganesh Narayan Sathe, I. L. R., 13 Bom., 600 (1889).
refusal to an
swer.
Judge may put Under section 1G5 of the Indian Evidence Act I of 1872, a Judge has
irrelevant ques the power of asking irrelevant questions to a witness, if he does so in order
tions to obtain to obtain proof of relevant facts ; but if he asks questions with a view to
proof of rele criminal proceedings being taken against the witness, the witness is not
vant facts.
bound to answer them, and cannot be punished for not answering them, under
section 179 of the Indian Penal Code. Queen-Empress v. Hari Lakshman,
I. L. K., 10 Bom., 185 (1885).
Protection Section 132 of the Evidence Act I of 1872 makes a distinction be
given toanswers tween those cases in which a witness voluntarily answers a question and
which a witnesB those in which he is compelled to answer, and gives him a protection in the
is compelled to latter of these cases only. Protection is afforded only to answers which a
give.
• No. Ill of 1%77
witness has objected to give, or which he has asked to be excused from giving,
and which then he has been compelled by the Court to give. Per Birdwood,
J., (dissenting).—Section 132 of the Evidence Act I of 1872 read with
section 14 of the Indian Oaths' Act X of 1873, compels a witness to answer
criminating questions, and he is protected by the proviso to section 132 from
u criminal prosecution for any offence of which he criminates himself direct
ly or indirectly by his answer, except a prosecution for giving false evidence
by such answer. It is not only when a witness asks to be excused from
answering a criminating question, and his request is refused, that he is "com
pelled to give" the answer within the meaning of the proviso. The compulsion
is operative whether he asks to be excused or gives the answer without so
asking. Queen- Empress v. Ganu Sonba, I. L. B., 12 Bom., 440 (1888).
486. (/) Any person sentenced by any Court under section Appeals room
480 or section 485 may, notwithstanding anything hereinbefore ^'t!û!p"caio«.'
contained, appeal to the Court to which decrees or orders made in
such Court are ordinarily appealable.
(2) The provisions of Chapter XXX I shall, so far as they
are applicable, apply to appeals under this section, and the Ap
pellate Court may alter or reverse the finding, or reduce or reverse
the sentence appealed against.
(3) An appeal from such conviction by a Court of Small
Causes in a presidency-town shall lie to the High Court, and
an appeal from such conviction by any other Court of Small
Causes shall lie to the Court of Session for the sessions division
within which such Court is situate.
(4) An appeal from such conviction by any officer as Re
gistrar or Sub- Registrar appointed as aforesaid may, when such
officer is also J udge of a Civil Court, be made to the Court to
which it would, under the preceding portion of this section, be
made if such conviction were a decree by such officer in his capa
city as such Judge, and in other cases may be made to the District
J udge, or, in the presidency-towns, to the High Court.
487. (7) Except as provided in sections 477, 480 and 485, no certain Judges
Judge of a Criminal Court or Magistrate, other than a Judge of a „"f JJfry'""6"
High Court and the Recorder of Rangoon, shall try any person for °*f"^[ronri9j
any offence referred to in section 195, when such offence is com- when commit-
mitted before himself or in contempt of his authority, or is brought serves.'0™ °iem
under his notice as such Judge or Magistrate in the course of a
judicial proceeding.
(2) Nothing in section 476 or section 482 shall prevent a Ma
gistrate empowered to commit to the Court of Session or High Court
from himself committing any case to such Court.
A Magistrate, who has refused to set aside an order sanctioning a prose- jurisdiction to
cution on the charge of perjury, has no jurisdiction under the Criminal Pro- try certain
cedure Code, 1882, section 487, to try the case himself. Queen-Empress v. case*-
Seshadri Ayyangar, I. L. B., 20 Mad., 383 (18%).
5>6 Special Proceedings. [Ch. XXXV.
Magistrate com- A Magistrate is not debarred by B*tion 487 of the Code of Criminal Pro
blem to try an eednre, 1882, from trying an accused person under section 174 of the Indian
"or diôlie'ne'cc Penal Code for disobedience of a summons issued by him in Ids capacity of
of a summons Mamlatdar. In construing section 487 of the Code effect must be given to
MamtatcLr. ™ tne wor('9 " ss su,"h Judge or Magistrate," and these words must be read in
connection with all the three classes of offences previously referred to. Queen
Empress v. Raiji Daji, I. L. R., 18 Bom., 380 (181)3).
False evidence- A Sessions Judge who has directed the trial of a person for the offence of
Jurisdiction to giving false evidence committed in the course of a judicial proceeding of a
,ry' criminal nature before him cannot try the case himself. Queen-Emprest
v. Uakhdum, I. L. B., 14 All., 354 (1892).
Sanction to A Sessions Judge is not debarred by section 417 of tlie Criminal Procedure
prosecute by Code, 1882, from trying a person for an offence punishable nnder section 196
TriaT'oVsame- °^ l'le Pena' Code, when he has, as District Judge, given sanction for the
Judge as Kos- prosecution under the provisions of section 195 of the Code. Queen- Emprest
•ions Judge. v. Sarat Chamha Rakhit, I. L. R., 16 Cel., 766 (1889).
Jurisdiction of A Court other than the High Court, &c, can try persons for offences
gistrateS'in committed before itself only in cases to which sections 477, 480 or 485 is ap-
respect of plicablc and none of these sections is applicable when the accused is charged
nfSnetore1 under section 1 75 of the Penal Code. Queen-Ewpress v. Seshayya, I. L, B.T
themselves. 13 Mad., 24 (1889).
Sanction to pro- A complainant applied to a Munsif for sanction to prosecute a decree-
naV'appea".™"" holder fcr an offence under section 210 of the Penal Code, and, upon the
hearing of. by Munsif's refusing su h application, preferred an appeal to the District Judge,
whohas gran-" who granted the sanction asked for. The decree-holder, having been prosecu
ted sanction to led and convicted before a Deputy Magistrate, preferred an appeal, which
prosecute. came on for hearing before, and was disposed of by, the same District Judge
who had granted the sanction. Held, that the words " shall try any person,"
as used in section 487 of the Code of Criminal Procedure, 1882, include the
hearing of an appeal, and that the hearing of the appeal from the order of the
Munsif refusing sanction was a judicial proceeding within the meaning of
the Code, and consequently that, under the provisions of section 487, the
District Judge had no jurisdiction to entertain the appeal against the judgment
and sentence passed by the Deputy Mugistiate. Madhab Chuuder Mozumdar
v. Novodeep Cliundcr Pundit, I. L. E., 16 Cal., 121 (1888).
Sanction to A District Judge who has, on hearing a civil appeal, sanctioned the prose-
prosecute - Po- cllt ion of a party for forgery, is not debarred by section 473 of the Code of
person asSes- Criminal Procedure, 1872, from trying the offence in his capacity of a Sessions
try theJudee
•ions to Judge.
otlence. 6 Empress
r v. Gasper
1 D'Silca, I. L. R.. 6 Bom., 479 (1882)'
PerjiiiryTcnarge A prisoner, who had made certain contradictory statements on oath before
of—Oontradic- a Magistrate and a Court of Session, respectively, was convicted by the same
—SrUMMton Court of Session on a charge, in the alternative, of giving false evidence
Sessions Court either before the Magistrate or before the Court of Session. Held, that the
before which Court was precluded by section 473 of the Criminal Procedure Code, 1872,
Statements was from trying the charge Sundriah v. The Queen, I. L. R., 3 Mad., 254 (1881).
made.
Prosecution for An instruction to the Magistrate of the District by the Court of Session,
Snof-SS1*8 *T*" conta'nec' m *'IC concluding sentence of its judgment in a case tried by it, to
tion in conclud- prosecute a person for giving false evidence before it in such case, does not
ing sentence of amount to sanction to a prosecution of such person for such offence within
judgment. the moarjjng 0f 8ection 468 of the Code of Criminal Procedure, 1872, that
section supposing a complaint, or at least an application for sanction for a
complaint. Where a Court thinks that there is sufficient ground for enquiring
into a charge mentioned in sections 407, 468, 4(19 of t'le Coile of Criminal
Procedure, 1872, it should proceed under section 471 of that Code. Empress
of India v. Gobardha* Das, 1. L. R., 3 All., 02(1880).
Where a Settlement Officer, who was also a Magistrate, summoned, as a ^'etreo['' Settle-
Settlement Officer, a person to attend his Court, and such person neglected to nient officer—
attend, and such officer, as a Magistrate, charged him with an offence under Conviction i»
section 174 of the Penal Code, and tried and convicted him on his own charge, p"'^""^ 0f
A«M,'that such conviction was, with reference to sections 471 and 473 of the Magistrate.
Code of Criminal Procedure, 1872, illegal. Empress of India v. Sukhari, I.
L. R., 2 All., 405 (1879).
Section 473 of the Code of Criminal Procedure, 1872, which, except as Contempt of
therein provided, forbids a Court to try any person for an offence committed Si^coirt"1 ^
in contempt of its own authority, is not limited to offences falling under
Chapter X of the Penal Code, but extends to all contempts of Court. Reg.
v. Parsapa Mahadevapa, I. L. R., 1 Bom., 339 (1870).
Giving false evidence is " an offence committed in contempt of the au- Contempt oi
thority" of a Court within the meaning of section 473 of the Code of Crimi- cvM?ilce-Com-
ual Proced ure, 1872. Reg. v. Nacratibeg (10 Bom., H. C. Rep 73), and the mitment—Sen-
ruling in 7 Mad. H. C. Rep., App. XVII, followed. Where the accused tence-
was by a Magistrate, first class, committed for trial by the Sessions Court on
a charge of having given false evidence in a judicial proceeding before the
Sessions Judge, there being no Assistant Sessions Judge or Joint Sessions
Judge : Held, that the commitment could not lie quashed, there being no
error in law, and the case must therefore be transferred for trial to another
Court of Session. In such a case as the above, the better course would be for
the Magistrate to try the case himself, and, if he is incompetent to pass a
sufficient sentence, for the Sessions Judge to refer the case to the High Court
for enhancement of sentence. Reg. v. Gnji Kom Rutin, I. L. It., 1 Boin..
311 (1870).
CHAPTER XXXVI.
Of the Maintenance ok Wives and Children.

488a (/ If any person having sufficient means neglects or Order of main-
refuses to maintain his wife or his legitimate or illegitimate child in'Jf children.0
unable to maintain itself, the District Magistrate, a Presidency
Magistrate, a Sub Ihisional Magistrate or a Magistrate of the first
class may, upon proof of such neglect or refusal, order such person
to make a monthly allowance for tba maintenance of his wife or
such child, at such monthly rate, not exceeding fifty rupees in
the whole, as such Magistrate thinks fit, and to pay the tame to
such person as the Magistrate from time to time directs.
(2) Such allowance shall be payabks from the date oi the
order, or if so ordered from the date of the application for main
tenance.
(3) If any person so ordered wilfully neglects to comply with Enforcement oi
the order, any such Magistrate may, for every breach of the order, <mIcr-
issue a warrant for levying tlie amount due in manner hereinbefore
5i8 Special Frocctdings. [Ch. XXXVI.
provided for levying fines, and may sentence sncli person, for the
whole or any part of each month's allowance remaining unpaid
after the execution of the warrant, to imprisonment for a term
which may extend to one month or until payment if sooner made :
Provided that, if such person offers to maintain his wife on
condition of her living with him, and she refuses to live with him,
sach Magistrate may consider any grounds of- refusal st t< d by
her, and may make nn order under this section notwithstanding
such offer, if he is satisfied that there is just ground for so doing.
(4) No wife shall be entitled to receive an allowance from
her husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her husband,
or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order lias
been made under this section is living in adultery, or that without
sufficient reason she refuses to live with her husband, or that they
are living separately by mutual consent, the Magistrate shall c.incel
the order.
(6) All evidence under this Chapter shall be taken in the
presence of the husband or father, as the case may be, or, when his
personal attendance is dispensed with, in the presence <*f his plea
der, and shall be recorded in the manner prescribed in the case of
summons-cases :
Provided that if the Magistrate is satisfied that ho is wilfully
avoiding service, or wilfully neglects to attend the Court, the
Magistrate may proceed to hear and determine the case ex parte.
Any order so made may be set aside for good cause shewn, on
application made within three months from the date thereof.
(7) The accused may tender himself as a witness, and in such
case shall be examined as such .
(8) The Court in dealing with applications under this section

shall have power to make such order as to costs as may be just.
(9) The accused maybe proceeded against in any district
where he resides or is; or where he last resided with his wife, or,
as the case may be, the mother of the illegitimate child.
For form of warrant of imprisonment on failure to pay
maintenance, see schedule V, No. 40.
C^m"piaint<b~ ^ B Person neglects or refuses to maintain his wife, the proper Court to
wffanVa'inat'fior take cognizance of the complaint of the wife is the Court within the jurisdie-
huBband-Juria- tion of which the husband resides. G. lienbmc v. W. Benbow, I. L. R., 24
iKtKn- Cal., C38 (1897).
When in answer to an application "for (enforcement of an order under Maintenance-

Beet ion 488, Act X of 1882, for the maintenance of a wife, the party against plea °rai,,<)ri:««
whom such order is subsisting pleads that he has lawfully divorced his wife,
and tlierefore the order can no longer he enforced, it is the duty of the Court
hearing the application to entertiin and consider such plea, and, if it finds the
plea established, to decline to enforce the order for any period subsequent to
the date when the marriage ceased to subsist between the parties. In such
case, when the pai ties are Miihaminadans, the marriage will be deemed to
subsist until the expiration of the idiat. Shall Abu ]It/as v. Ulfat Bibi,
I. L. R., 19 All., 50 (18%).
Adultery on the part of the husband, not being such adultery as would Maintenance-
be punishable under the Penal Code, may nevertheless constitute sufficient cause Adult«ry-
for the wife separating from her husband and enable her to claim maintenance
under the Criminal Procedure Code, 1882, section 488. Perianayagam v.
Krishna C'hetti, I. L. R., 20 Mad., 470 (1896).
The right of children to be maintallied, by their actual fatherMs a status Maintenance of
toryjright, and the duty is created by express enactment independent of the children-Mop-
personal law of the parties. If the children are illegimate, the refusal of the J»h8—Personal
mother to surrender them to the father is no ground for refusing maintenance.
If the children are legitimate, the question of the mother's right to their cus
tody would depend on the question whether the parties are governed by
Muhammadan or Marumakkatayam law ; because (1) if they are governed
by Muhammadan law, the mother may have the right to custody 1 until the
children attain the age of seven years ; (2) if by the Marumakkatayam law,
it is doubtful if the father could be held to have neglected his duty to main
tain his children if they were actually maintained by the iKarnavan of their
mother's tarwad who is bound by law to maintain them. Kariyailan Pokkar
v. Kayat Beeran Kutli, I. L. R., 19 Mad., 461 (1895).
A person againstwhom an order for "maintenance under section 488 of Person aa-amst
the Code of Criminal Procedure, 1882, is sought is a competent witness on his Maght ST^com-
own behalf in such proceedings. Hires Lai v. Saheb Jan, I. L. R., 18 petont witness.
All., 107 (1895).
An order for the maintenance of a wife duly made under section 488 of Sto^co o^wHe
the Code of Criminal Procedure, 1882, cannot be superseded by a declaratory —Such order 8
decree of a Civil Court to the effect that the wife in whose favour such g°t affected by
order has been made has no right to maintenance. Subhudra v. Basdeo Dube, ^ "or civil"
I. L. R., 18 All., 29 (1895). Court.
A wife, who had obtained an order fori maintenance against her hus- Breach or order
band on the 1st August, applied to have it enforced with respect to three '°r monthly
months then in arrears. A distress warrant having issued without anything pri^m.ent "or
being realized, the husband «as brought up under a wan-ant for his arrest, default of pay
The husband previous to this arrest petitioned the Court to be allowed to tonance-Sen-""
prove his altered circumstances and his inability to pay. On that petition an tence absolute,
order was passed that he could produce the evidence after the amount due
was paid. On being brought up, and not paying the_ amount due, an order
was made committing him for one month under section 488 of the Code of
Criminal Procedure, 1882. The day following his commitment his brother
tendered the money and asked for his release. The Magistrate took the
money, but refused to order the release, holding that under the section the
punishment of imprisonment was absolute and not dependent on payment of
the maintenance allowance. The husband moved the High Court, contending
(1) that the order of imprisonment should not have been passed without an
opportunity being given him of proving the change in his circumstances,
which would show that the order to pay required modification ; (2) that tbe
520 Special Proceedings. [Ch. XXXV7.
(tcclion did not authorise imprisonment unless wilful neglect to comply with
the order be proved ; and (3) thut the imprisonment authorised by tlie section
being only a mode of enforcing payment, he should have been released on tlie
amount being paid, llell, that the first ground was untenable, inasmuch as
the order for maintenance carries with it all its proper consequences as long
as it remains in force. Held, also, that before an order for imprisonment un
der the section can be passed it must l>e proved that tlie non-payment of the
maintenance is the result of wilful negligence, and tliat there being no evi
dence of tliat in tlie case the order was bad. Held, further, tint the im
prisonment which can be awarded under the section is not a punislnnent for
contempt of the Court's order, but merely a means of enforcing payn>ent of
the amount due, and tliat upon the payment of that amount being made the
husband was entitled to be released. SUlfiesinir Teer v. Gyanada Dasi,
I. L. R., 22 Cal., 291 (1894).
Maintenance— Held, that when a Magistrate hod passed an order under section 488 of the
Effectofdivorce Code of Criminal Procedure, 1882, for a person to make a monthly allowance by
Enforcement" of way °^ maintenance of hi* wife, and after such order tlie person liable tbere-
enier. under alleges that lie lias lawfully divorced tlie woman and that s1 e is there
fore no longer his wife, it is open to the Magistrate to entertain and enquire
into such plea, and if be fails to establish, to refuse to enforce his order,
at least after such date as the divorce operates under the law or custom govern
ing the parties to disentitle the woman to further muintf nance. Per Chat-
tebji, J.— The conditions specified in tlie second clause of section 490 of the
Code have special reference to cases in which enforcement is sougirt at a place
other than that in which tlie order was originally passed, or by a Magistrate
other than tlie one who passed it, and cannot be considered exhaustive, and it
is open to any party to such order to show cause against its en forcein ent and to
ask for its cancellation or alteration on any of the grounds specified in sections
488 and 489 in one and the same petition. Inasmuch as tlie Magistrate's
order for maintenance of a wife must be in favor of a person bearing that
legal character under the personal law which governs tlie parties, sue i order
cannot ensure for the benefit, and cannot be enforced in favour, of one wlio
no longer bears that character under that law, and it is incumbent on the Ma
gistrate, when the question is raised before him, to satisfy himself that tlie
woman still possesses the character by virtue of which she was enaldeJ to ob
tain an order of maintenance, Mussammat Boji v. Nawab Khan, Punj. Rec.,
1894, p. 69.
Maintenance— A wife petitioned for maintenance for herself and child against her 1ms-
A.dbi"e.'y_C0n' 1x111(1 under 488 of the Criminal Procelure Code, 1882. The husband
did not refuse to maintain his wife, but the petitioner refused to live with him
as he kept a concubine : Held, that the word " adultery," in section 488 of the
Code, must, by virtue of section 4 of the Code, be construed with reference
to the definition of the term in section 497 of the Penal Code. Consequently
a husband's immorality which does not amount to "adultery," or involve tlie
degradation of a married woman being brought into the society of a concubine
is not sufficient ground for a wife's refusal to live with her husband. An
offer to maintain a wife must be an offer to maintain with the consideration
due to her position as a wife. Per Best, J.—It is very doubtful if the fra-
mers of section 488 of the Code intended the word "adultery" as used therein
to have the limited meaning given to it in the Penal Code. The wrong done
to the wife is in no way affected by the circumstance of her husband's concu
bine being married or unmarried, or, in case of her being married, whether it is
with or without her husband's consent or collusion that she is living in such
concubinage. In face, however, of section 4 of the Code, no other interpre
tation of the term " adultery " is possible than the limited interpretation con
tained in the Penal Code. Queen-Empress v. Mamiatha Achari, I. L. R., 17
Mad.. 2C0 (1893).
S. 488,1 Special Proceedings. 521
A married woman is entitled, under section 488 of the Code of Criminal Rifht of a mar-
Procedure, 1882, to claim maintenance for her illegitimate children from the "lajmâTnten^
putative futlier. A wife can bo examined as to non-access of her husband ance for her ille-
during her married life, without independent evidence being first offered to gj^1™"'* chil"
prove the illegitimacy of her children. Rozario V. Inglei, I. L. K., 18 Bom.,
468 (1893).
Where a person in whose favour an order under section 488 of the Code Application by
of Criminal Procedure, 1882, has been made, takes that order before a Magis- "rder-pTea0"6
trate, and the Magistrate finds that he has jurisdiction owing to the residence that applicant
of the person affected by the order, and is satisfied as to the identify of the im<l been di-
parties and the non-payment of tho allowance due, it is his duty to enforce the vorced-
order for maintenance. It is no part of the duty of a Magistrate on such an
application as above mentioned, viz., an application under section 490 of
the Code, to entertain a plea by the party against whom the order is sought
to be enforced, to the effect that he has divorced the applicant and is there
fore no longer liable to pay maintenance. Mahbuban v. Fakir Bakhih, I.
L. R., 15 AH., 143 (1893).
Proceedings under Chapter XXXVI of the Code of Criminal Procedure, Proceedings on
1882, cannot be conducted as in a summary trial under Chapter XXII, but "j^Jj^'mnce-'
the evidence taken must be recorded as provided by section 355. Kali Dassi summary trial,
v. Durga Charm Naik, I. L. R., 20 Cal., 351 (1892).
Before a Mgistrate makes an order under section 488 of the Code of JgJ^'n'Jj'nod0 1x1
Criminal Procedure, 1882, he must find that the complainant is the wife of under the see
the person from whom she claims maintenance, and that he has either neg- tion—Wife's
lected or refused to maintain her. The complainant, Bai Mani, claimed "te'iiminte""
maintenance from her husband, Gulabdas Bhaidas, under section 488 of nance,
the Code. In the course of the proceedings, Gulabdas pleaded that his
marriage with the complainant was not valid according to Hindu law, but
offered to maintain her in his house as he had hitherto done. This offer was
not accepted. The Magistrate held that the offer was not one within the
meaning of section 488 of the Code, because Gulabdas denied the validity
of his marriage with the complainant, and refused to keep her with him as
his wife. Held, that there is no authority for the proposition that the words
" as his wife" should be read into section 488 of the Code. In re Gulabdas
Bhaidas, I. L. R., 16 Bom., 269 (1891).
When a wife, after a temporary absence from her husband on a Order for main-
visit, found on her return that he was living with another woman and lf\if|tee)ivinWi,e
therefore left him and went to live in a different district, and in that district apart Irom'her
applied for an order for maintenance against her husband : Held, that the husband for
wife being justified in refusing to live with her husband and in choosing good ottu,e'
her own place of residence, the neglect of her husband to maintain her was
an offence within the jurisdiction of the appropriate Court at the place v. here
the wife resided. In re Malcolm, DeCastro, I. L. R., 13 AH., 348 (1891).
A Magistrate has no power under the Criminal Procedure Code, 1882, M • ,
section 489, to make an order for maintenance at a progressively increasing ^gressTvely *
rate, but the fact that the child has grown older might constitute a change increasing; rate!
in the circumstances calling for a variation in the rate. In re Ramayet,
I. L. R., 14 Mad., 398 (1890).
Bastardy proceedings under the provisions of section 488 of the Code of Bastardy pro-
Criminal Procedure, 1882, are in the nature of civil proceedings within the ot^&'fon-*'
meaning of section 120 of the Evidence Act, and the person sought to be Evidence,
charged is a competent witness on his own behalf. Upon a summons, charg
ing that the defendant, hiiving sufficient means, had refused to maintain his
522 Special Proceedings. [Ch. XXXVI.
child by his nika wife whom he had subsequently divorced, the Magistrate
found that the marriage had not been proved, but that, upon the other evidence
adduced, including the similarity of the features and the name of the child
with those of the defendant, who did not appear before him during the pro
ceedings, but with whom he stated that he was well acquainted, the child
was the illegitimate child of the defendant. He accordingly made an order
for maintenance under the section. Held that, under the circumstances, he
was wrong in taking into account the similarity of the names and the features
of the child and the defendant ; but, as there was ample evidence of the pater
nity, he was justified in making the order he did, us it was immaterial for
the purpose of determining the liability of the defendant to maintain the
child, whether the mother had been married to the defendant or not. Nur
Muhammad v. Bismulla Jan, I. L. R., 16 CaL, 781 (18811).
Hindu not di- A Hindu not divided from his father can be ordered to maintain his wife
vided from his under section 488 of the Code of Criminal Procedure, 1882. Queen-Emprest
Ufa! hilwite!"" v. Ramatami, I. L. R., 13 Mad., 17 (1889).
Husband
wife- and js notThe
• Cruelty. word " cruelty
necessarily limited"toinpersonal
section violence.
488 of the Criminal
Rukmin v.Procedure Code,
Peare Lai, I. L.1882,
R.,
11 All., 480(1889).
Maintenance Under section 488 of the Code of Criminal Procedure, 1882, a Magistrate
cTûbordTnat? °^ tne ^r8t c'a8s mavi uPon Pro°f of neglect or refusal by a person having
Magistrate Hie- sufficient means to support his wife, order such person to make a monthly
B*l- allowance for the maintenance of his wife : a first class Magistrate, having
referred a complaint by a wife for maintenance to a subordinate Magistrate
to take evidence and report upon the facts stated in the petition of com
plaint, passed an order upon such report in the absence of the husband for pay
ment of maintenance. Held, that the order was illegal. Venkata v. Paramnta,
I. L. R., 11 Mad., 199(1887).
Breach of order Where a claim for accumulated arrears of maintenance for several months
for monthly al arising under several breaches of an order for maintenance is dealt with in
lowance—War
rant for levying one proceeding, and arrears levied under a single warrant, the Magistrate,
arrears-Impri acting under section 488 of the Code of Criminal Procedure, 1882, has no
sonment for
allowance re- power to pass a heavier sentence in default than one month's imprisonment,
? unpaid. as if the warrant only related to a single breach of the order. Per Edge,
C. J.—Section 488 contemplates that a separate warrant should issue for each
separate monthly breach of the order. Per Straight, J.—The 3rd paragraph of
section 488 ought to be strictly construed, and, as far as possible, construed
in favour of the subject. Under the section, a condition precedent to the
infliction of a term of imprisonment is the issue of a warrant in respect of
each breach of the order directing maintenance, and where, after distress has
been issued, nulla boxa is the return. The section contemplates one warrant,
one punishment, and not a cumulative warrant and cumulative punishment.
Also per Straight, J.—With reference to section 2, clause (18) of the General
Clauses Act (I of 1868) "imprisonment" in section 488 of the Code may be
either simple or rigorous. Per Oldfield, J. — A claim for accumulated arrears
of maintenance arising under several breaches of order may be dealt with in
one proceeding, and arrears levied under a single warrant. Queen-Emprest v.
Narain, I. L. R., 9 All., 240 (1887).
Maintenance— A Magistrate has no power, under section 488 of the Code of Criminal Pro
Progressively cedure, 1882, to make an order for maintenance at a progressively increasing
increasing rate. rate. He may, however, under section 489, from time to time, alter the rate
of the monthly allowance granted as maintenance under section 488. Upen _
dra Nalli Dhal v. Sondamini Dasi, I. L. R., 12 CaL, 535 (188C).
Where an application is made to a Magistrate to enfore an order for Enforcement of
maintenance, passed under section 488 of the Code of Criminal Procedure, 1882, ten»nc°e'. """""
such Magistrate is not bound to enforce the order if the defendant proves
that the claim for maintenance has been released. Ratiyamma v. Muhammad
Alt, I. L. B., 10 Mad., 13 (1886).
A sentence of imprisonment awarded under section 488 of the Code Impriso ment
of Criminal Procedure, 1882, for wilful neglect to comply with an order to pay JS'/menllsib-
maintenance is absolute, and the defendant is not entitled to release upon pay- sequent offer to
ment of the arrears due. Biyaiha v. Moidin Kutti, I. L. B., 8 Mad., 70 (1884).
A complaint under section 488 of the Code of Criminal Procedure, 1882, ^^'"'in'.tLr
falls within the cognizance of the Magistrate competent to entertain Buch com- husband for
plaint, and within the local limits of whose jurisdiction the husband or the maintenance,
father is actually residing at the date of such complaint. The expression
" The District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate,
and a Magistrate of the first-class,' in section 488, means the Magistrate
of the particular district in which the person resides, against whom a complaint
is made. In re Shad- Fakrudin, I. L. K., 9 Bom., 40 (1884).
An agreement by a husband to maintain his wife by giving her a house Agreement by
and jewels, and by delivering to her annually a certain quantity of grain and nusb4nd-
money, cannot l>e made the subject of an order under section 536 of the Code
of Criminal Procedure, 1872, nor enforced under the provisions of that section.
Viramma v. Narayya, I. L. B., 6 Mad., 283 (1883).
An offer by a Hindu, having two wives, to maintain his first wife by al- Offer to main-
lowing her to live in his house, and by supplying her with grain to be cooked tam-
and eaten separately coupled with a refusal to live with her as husband and
wife, does not come within the meaning of the proviso to section 536 of the
Code of Criminal Procedure, 1872. Marakkal v. Kandappa, I. L. B., 6 Mad.,
371 (1883).
A Hindu wife having applied for an order for maintenance against her Refusal by H in*
husband, the husband offered to maintain her in his house, but the offer was <Ju wife to live
refused on the ground that the husband had, without cause, married a second ônamarriaiie
wife. The Magistrate ordered the husband to pay a monthly sum by way of by husband,
maintenance Held, lln.t the fact that the husband had married a second
wife was not a sufficient reason, within the meaning of section 488 of the
Code of Criminal Procedure, 1882, to justify the order. Arumuoam v. Tulu-
kanam, I. L 11., 7 Mad., 187 (1883).
An order was made under section 234 of Act IV of 1877 by the Presi- Maintenance -
dency Magistrate, directing a Borah Mahomedan husband of the Imami Divorce- Effoc
sect to pay a sum monthly for the maintenance of his wife belonging to the upou 0 er*
Hunafi sect, does not deprive the husband of his right to divorce his wife,
and after such divorce the Magistrate's order can no longer be enforced. The
talak biddat, or irregular divorce, which is effected by three repudiations at
the same time, appears from the authorities to be sinful, but valid. In re
Abdul All Ishmailji v. Husnibi, I. L. B., 7 Bom., 180 (1883).
Under the law of the Sheea sect of Mahometans, a mutta wife ia not entit- Maintenance-
led to maintenance; but such a provision of the law does not interfere with the Mutta form oj
statutory right to maintenance given by section 536 of the Code of Criminal ™™age-Bheea
Procedure, 1872. The mutta form of marriage does not admit of repudiation
under the law of the Sheea sect of Mahomedans. Quaere. —Whether the
form of divorce callel zihar may be exercised in the mutta form of marriage ?
Luddurt Sahiba v. Mirta Kumar Kudar, I. L. B., 8 Col., 736 (1882).
Maintenance or An order for the maintenance of a wife, passe 1 under Chapter XLI of
wife-Mahome- the Code of Criminal Procedure, 1872, becomes inoperative, in the case of a
Dtoree"- Mahomedan, by reason of his lawfully divorcing his wife, and thus putting
" Iddat." an end to the conjugal relation, but it does not become so before the expira
tion of the divorced wife's " iddat." In re Din Muhammad, I. L. R., 5 All..
226 (1882).
Adultery of wife A husband upon whom an order to make an allowance for the mainten
subsequent to ance of his wife had been made under section 58(5 of the Code of Criminal Pro-
te'nance^-AS"1" cedure, 1872, objected to the payment of the allowance on the ground that his
judicata. wife was living in adultery. The Magistrate, entertaining this objection,
disallowed it, on the ground that the charge of adultery against the wife was
not established. The husband subsequently again objected to the payment
of the allowance on the same ground. The Magistrate entertained the second
objection, allowed it and directed the husband to discontinue paying the allow
ance. His order was based on proof of adultery by the wife before the date
of the order of the former Magistrate. Held, on the general principl a of the
rule of res judicata, that the second Magistrate was wrong in law in re-open
ing matters already adjudicated upon, and his order directing the discontinu
ance of the allowance on the ground of facts antecedent to the former Magis
trate's order must be held to be illegal. Laraiti v Ram Dial, I. L. R., 5 All.,
224 (1882).
8 u ffl cie' nt cauuse ■ sufficient
Held,rea.aon
that though
under non-pay 'nent by law
the Mahomedan the for
husband of prompt
a married womandower is a
to with
hold her person from her husband, that su;h non-payment is not "sufficient
cause" within the meaning of section 536, Criminal Procedure Code, 1872, so
as to empower a Court to decree separate maintenance to a Mahomedan wife
against a husband who is willing to maintain her upon condition of her living
with him. Mehtab Bibee v. Dina, Punj. Bee, 1880, p. 27.
Maintenance— A Presidency Magistrate is competent to stay an order for maintenance
Effect ofdivoree granted under section 234 of Act IV of 1877, and to refuse to issue his
order'Unte"anCe warrant u»der the 3rd clause of that section, and to try all questions raised
liefore him -which affects the right of a woman to receive maintenance.
There can be no distinction raised between a dissolution of marriage obtained
under the Indian Divorce Act and a dissolution obtained under the Maho
medan law. It is only on proof of the existence of the relationship of
husband and wife that a Magistrate can make an order under section 234,
granting maintenance to a wife ; but where proof has been given that such
relationship has ceased to exist, he may stay an order already made under
that section. Abdur Rahoman v. Salchint ; Subhan v. Shubraton ; Ossuff'v .
Shama, I. L. B., 5 Cal., 558 (1879).
Arrears of main- Arrears of maintenance, included in the schedule filed by an insolvent,
tenance— are a debt or liability within the meaning of section 13 of the Insolvent Act
" Debtor liabi- and 12 Vict., Cap. 21) ; and an insilvent, who has obtainel a protection
torn order— °" order, is not liable for arrest or imprisonment in respect of such. Quare.—
Arrest ol insol- Whether the protection-order protects the insolvent from proceedings in
Ten'i• respect of any maintenance accruing subsequently to the filing of the schedule?
In re Tokee Bibee v. Abdool Khan, I. L. B., 5 Cal., 536 (1879).
Maintenance— ^n determining questions under Chapter XLI of the Code of Criminal
Custody of Procedure, 1872, as to the maintenance of wives and families in certain cases,
iiieiritiuiate a Magistrate has no power to enter into any question as to the lawful
guardianship of a child. There is nothing in the Code which would warrant
a Magistrate in ordering a mother to surrender her illegimate child to its
father, although such child be of the age of maturity. A refusal by the
mother to make over the custody of the child in such a case would be no
ground for stopping an allowance previously ordered. Lai Das v, Nekunj')
Bhaishianiy\. L. R.. 4 Cal., 374 (1878).
When a duly empowered Magistrate has decided a matter under section Ec-ope"'"K of
535 of the Co le of Criminal Procedure, 1872, by dismissing the application ca,e decided,
after hearing the evidence offere 1, the District Magistrate is not competent to
entertain the complaint tie novo. Mussummat Jamoti v. Gadalo Kamar, 1
Cal. L. K., 89 (1877).
In making an order for maintenance under the Code of Criminal Procc- Security,
dure, 1872, section 536, a Magistrate has no power to take security for possible
default. Kanoo Soudagur v. Alabundee Bewa, 24 W. R., 72 (1875).
In a case in which a Magistrate made an order under section 536, Code Maintenance of
of Criminal Procedure, 1872, directing the husband to pay a monthly sum for wife residjng at
the maintenance of his wife, the High Court set aside the order on the ground uoruJeit'ler *
that it appeare 1 that the husband had not been called upon to maintain the
wife, who had, up to that time, lived with her father, and that the father had
refused to let the wife live with her husband without receiving money from
him. Museaimnat Somree v. Jilun Sonar, 22 W. R., 30 (1874).
The proviso to section 53(5 of the Code of Criminal Procedure, 1872, does Neglect or
not authorise a Magistrate to entertain an application for separate maintenance refusal to main-
on the ground of ill-treatment, from a wife whose husband has not neglected p°'"r,'!e—
or refused to maintain her, but who has of her own accord left her husband's rU y'
house and protection ; and to order an allowance to be paid to such wife on
evidence of ill-treatment. In re W. A. Thompson, 6 N.-W. P. H. C, 205
(1874).
An order for maintenance having been made under section 536 of the Divorce in pro-
Code of Criminal Procelure, 1872, the plaintiff applied to have the order aeace of Court,
enforced. The defendant, being called on to show cause why the order should
not be enforced, divorced his wife (the plaintiff) in the presence of the Court.
Held that, even if such divorce made such an alteration in the circumstance
as to justify the Court, on the application of the husband (the defendant), in
altering the order for maintenance, yet the defendant would not be relieved
from obeying the order during the time which had elapsed up to the date
when and until that change of circumstances had occurred. Ntpoor Aurat v.
Jural, 19 W. R., 73 (1873).
The petitioner, a resi lent of Cawnpore, was summoned to Allahabad to jurisdiction,
answer an application for the maintenance of his children. He was ordered
to make them a monthly allowance. A somewhat similar application had been
m i le at Cawnpore, which was rejectel on the ground of jurisdiction. Held,
that the juris liotiou of the Magistrate who disposed of the case was not
barred by the circumstance of the petitioner being resident at Cawnpore, or of
former application having been rejected. In re IV. B. Todd, 5 N.-W. P. H.
C, 237 (1873).
A decision of the Civil Court, refusing to enforce a contract or agreement Maintenance of
against a man for the maintenance of a woman, cannot conclude the woman illegitimate
fiom applying, or a Magistrate from making an order, under section 316 of the ofefyifcourt"
Code of Crimiual Procedure, 1861, for the maintenance of their illegitimate
daughter. In re John Meitelback, 17 W. R., 49 (1872).
A woman of the Jut caste applied, under section 316 of the Code of Cri
minal Procedure, 1861, for an order of maintenance. As she had only gone
through the ceremony of " Karao " with her alleged husband, the Joint Magis
trate rejected her application. His order was set aside, in reference, a
" Karao marriage among tho J -its being held valid, and the offspring of such
unions being entitled to inherit. The Queen v. Bahadur Sing, 4 N.-W. P. H.
C, 128 (1872).
Illegitimate The circumstances that the father of an illegitimate child is sixteen vears
child—Father old only, and still studying at school, is not by itself a sufficient reason for
being 16 years holding him excused from the necessity of providing for Ms illegitimate off
of age.
spring. The law requires that the pel son on whom the order of maintenance
is issued must have sufficient means to support the child. Mmsummat Nara'm
Koer v. Roshun Lai, 4 N.-W. P. H C, 123 (1872).
Adultery of wifn It is open to a husband upon whom an order to make an allowance for the
»_ft«rtorder for maintenance of his wife has been made, under section 316 of the Code of
maintenance. Criminal Procedure, 1861, after such order has been made, to prove that his
wife is living in adultery, and upon such proof a Magistrate is justified in,
cancelling an order made under the above section. Choku v. lthyar Bkudar
8 Bom. H. C, 124 (1871).
No order can be passed under section 316 of Chapter XXI of the Code of
Unborn child. Criminal Procedure, 1861, for the maintenance of an unborn child. JIusmn-
mat Larlee v. Butisee Ditchit, 3 N.-W. P. H. C, 70 (1871).
Prospective An order made under section 316 of the Code of Criminal Procedure,
order for an 1861, fixing a sum for the maintenance of a child, containing a prospective
increase of order for an increase of the amount awarded as the child grows older, is un
maintenance. authorised by the law. Mutsammat Munglo v. Jumna Dam, 2 N.-W. P.
H. C, 454 (1870).
Refusal of wife The wife refused to live with her husband, unless they dwelt apart from
to live with the husband's mother " who would not let her live in peace." Held, that the
husband. wife was not entitled to maintenance. Mustammat MuUca v. Ahmed, Punj.
Hoc., 1870, p. 36.
Alteration 489. On proof of a ch.inge in the circumstances of any

allowance. person receiving under section 488 a monthly allowance, or
ordered under the same secti m to pay a monthly allowance to his
wife or child, the Magistrate may make such alteration in the
allowance as he thinks fit : Provided that if he increases the
allowance, the monthly rate of fifty rupees in the whole be not
exceeded.
Miintcnnnce— ^n secf'on 483> Act X of 1892, the "change in circumstances " referre*!
Change in cir- to is a change in the pecuniary or other circumstances of the party paying or
cutnstancos. receiving the allowance which would justify an increaso or decrease of the
amount of the monthly payment originally fixed, and not a change in the
status of the parties which would entail a stoppage of the allowance. Shah
Abu llyat v. Olfat Bibi, I. L. R., 10 All., 50 il896).
Maintenance section A Magistrate has no power under the Criminal Procedure Code, 1882,
at a progres 489, to make an order for maintenance at a progressively increasing
sively increas' rate, but the fact that the child has grown older might constitute a change in
ing rate. the circumstances calling for a variation in the rate. In re Ramayee, I. L.
R., 14 Mad., 398 (1890).
Maintenance at A Magistrate has no power, under section 488 of the Code of Criminal
mcrea*s^8"ra1ly Procecmrei 1882, to make an order for maintenance at a progressively increas-
mcrea" Dl? ra e' ing rate. He may, however, under section 489, from time to time, alter the
rate of the monthly allowance granted as maintenance under section 488.
Upendra Nalh Dhal v. Somlmini Dasi, I. L. R.( 12 Cal., 535 (1886).
S. 489-49 1. J Special proceedings. 527
490. A copy of the order of maintenance shall be given o"^""/"^^-

without payment to the person in whose favour it is marie, or to tenance.
his guardian, it' any, or to the person to whom the allowance is to
be paid ; and such order may bJ enforced by any Magistrate in
any place where the person against whom it is made may be, on
such Magistrate being satisfied as to the identify of the parties
and the non-payment of the allowance due.
Where in answer to an application for enforcement of an order under Maintenance—
Bection 488 of the Code of Criminal Procedure, 1882, for the maintenance of ™» of divorce,
a wife, the party against whom such order is subsisting pleads that he has
lawfully divorced his wife and therefore the order can no longer be enforced,
it is the duty of the Court hearing the application to entertain and consider
such plea, and, if it tinds the plea established, to decline to enforce the order
for any period subsequent to the date when the marriage ceased to subsist
between the parties. In such case, when the parties are Muhammadans, the
marriage will bo deemed to subsist until the expiration of the iddat. Shah
Abu llyas v. Ulfat Bibi, I. L. B., 19 All., 50 (1896).
An application for maintenance under the Criminal Procedure Code, section Maintenance
488, should not be ("dismissed on the failure on the part of the applicant to 2*p»^^roceai
comply with an order for payment of process fees. In re Ponnammal, fees.
I. K. L., 16 Mad., 234 (1892).
Notwithstanding the provisions of section 538 of the Code of Criminal Warrant for
Procedure, 1872, the Magistrate who has imade an order for maintenance ^ârs"?! °
under section 53'J may issue a warrant for collection of arrears of mainte- maintenance,
nance when the husband is out of his jurisdiction. The Queen v. Karri Papa-
yamrna, I. L. it., 4 Mad., 230 (1881).
CHAPTER XXXVII.
DiiiEcnoxs of the Nature of a Habeas Cobtus.

491. (7) Any of the High Courts of Judicature at Fort Power to issue
"Willr-un, Ma iras and Bombay^may, whenever it thinks fit , ulcâulre °ot a
direct— " *"*"" earp"-
(a) , that a person within the limits of its ordinary original

civil jurisdiction be brought up before the Court to be
dealt with according to law ;
(b) that a person illegally or improperly detained in public
or private custody within such limits be set at liberty ;
(c) that a prisoner detained in any jail situate within such
limits be brought before the Court to be there examined
as a witness in any matter pending or to be inquired in
to in such Court ;
(d) that a prisoner detained as aforesaid be brought before a
Court-martial or any Commissioners acting under the
528 Special Proceedings. [Ch. XXXVII.
authority of any commission from the Governor-Gene

ral in- Council for trial or to be examined t niching any
mutter pending before such Court-marti il ur Commis
sioners respectively ;
(e) that a prisoner within such limits be removed from one

custody to another for the purp >se of trial ; and
(/) that the body of a defend mt within such limits be
brought in on the Sheriff's return of cepi corpus to a
writ of attachment.
(2) Each of the said High Courts may, from time to time,
frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under

the Bengal State Prisoners Regulation, * 1818. Madras Regula
tion II of 1819, or Bombay Regulation XXV of 1827, or the
State Prisoners Act, t 18o0, or the State Prisoners Act, {
1858.
Uabtm nrpui Saithri, a girl fifteen years of age, had for the last eight years, with her
-Guardinn— mother the petitioner's consent, been boarded and educated first at the Ameri-
m?norlych'an can Marathi Mission School and then at the Methodist Zenana Mission School,
of religion- of which latter school the respondent was the superintendent. The petitioner
Education and during that time had never contributed anything towards the expenses of
m^nor—Conduct ',er daughter's board and education, and was quite unable to do so, being a
of natural pruar- servant in receipt of a salary of only 8 annas a month, and with no home of
ofl8904ct her own. Saithri in the meantime had become a Christian, and assumed the
name of Sarah Hatti Houghton, and would soon be in a position, if allowed
to complete her education as she herself desired to do, to earn her own live
lihood by teaching. The petitioner now applied, under section 491 of the
Criminal Procedure Code, 1882, for an order on the respondent to show cause
why Saithri should not be delivered over to the custody of her mother, the
petitioner. Held, that even assuming that Saithri, not boing sixteen years of
age, was too young, according to the authorities, to be able to decide for
herself where she would reside, it was the duty of the Court to refuse the
present application, the Court not being satisfied that the application was
made bond fide by the petitioner, and the petitioner being a servant earning
only 8 annas a month as wages, a pauper, and having no home of her own :
Held, further, that according to the doctrine governing Courts of Equity in
such cases, the petitioner by her conduct during the last eight years had pre
cluded herself from demanding that her child should now be given up to her,
to do which would, under the circumstances, be manifestly most detrimental
to the welfare of the child herself. The true principle deducible from the
authorities by which the Court should be guided in such cases is that the
Court is to judge upon the circumstances of each particular case, and that the
welfare of the infant, irrespective of its age, is the main feature to be regard
ed. Semble.—k boy of fourteen and a girl of sixteen have a right to
choose their own residence. The provision of the Guardians and Wards Act
VIII of 1890, and cases on the subject in the English and Indian Courts con
sidered. In re Saithri, I. L. B., 16 Bom., 370 (1891).
* No. Ill of 1819. t No. XXXIV of 1350. J No III of 1358.
Ss. 492-493.] Supplementary Provisions.
The petitioner as step-mother claimed to be entitled to the custody of her îf'10^

deceased husband's minor son, who was living with D, his maternal uncle. nor should "not
She obtained a rule calling upon D to show cause why the child should not be be delivered to
delivered to her. After argument the rule was discharged. Held, that the [j^huo appeal
order discharging the ride was a judgment within the meaning of clause 15 against order of
of the Letters Patent, 1865, and that, therefore, under that clause the petitioner fS^S!!^
had a right to appeal against the order. In re Narroiula* Dhaitji, I. L. R., letters "patent,
14 Bom., 555 (18'.»0). isos.clauw is.
PART IX.
SUPPLEMENTARY PROVISIONS.
CHAPTER XXXVIII.
Ok the Piislic Prosecutor.
492. (/) The Governor-General in Council or the Local JVf p^b»f0"

Government may appoint, generally, or in any case, or for any Prosecutors,
specified class of cases, in any local area, one or more office's to be
called Public Prosecutors.
(2) In any case committed for trial to the Court of Session,
the District Magistrate, or. subject to the control of the District
Magistrate, the Subdivisional Magistrate, may, in tha absence of
the Public Prosecut >r, or where no Public Prosecutor has been
appointed, appoint any other person, not being an officer of polico
below the rank of Assistant District Superintendent, t > be Public
Prosecutor fur the purpose of such case.
Held by a Full Bench that a person appointed by the Magistrate of the P»hJic Pj™t^"
district under section 492 of the Code of Criminal Procedure, 1882, to be MuKistrnte,
Public Prosecutor for the purpose of a particular case tried in the Court of power of.
Session, has not the power of a Public Prosecutor with regard to withdrawal
from prosecution under section 4'J4. Queen- Empress v. Matlhv, I. L. R., 8
All., 291 (1880).
493. The Public Prosecutor may appear and plead without Public Prose-
any written authority before any Court in which any case of which SfaUcSSfhl
he has charge is untie.1 inquiry, trial or appaal ; and. if any private c^8 under'hig
i
person instructs 1 1 to
a pleader 1 prosecute in• 1any Court; any person
J 1 . ders
in chni-KO. Plea-
privately
any such case, the Public Prosecutor shall conduct the prosecu- undwhi^d^
tion, and the pbader s » instructed shill act therein under his tio"-
directions.
In a trial before a Court of Session or a High Court the Public Prose- Public Prose
cutor conducting the ease for the Crown is not bound to call as a witness for to^8ll°an°wi£
the Crown or to put into the witness-box for the purpose of cross-examination nesses whose
any of the witnesses appearing in the calendar as witnesses for the Crown whose EJSSStafuE
evidence is in his opinion unnecessary. Queat-Emitre-is v. Dun/a, I. L. R., 1G calendar1
All., 84 (18-J3).
34
53° Supplementary Provisions, [Ch. xxxviii.
Rejection by It is the duty of a Sessions Court to examine all the witnesses Bent up by
C ourt of the committing Magistrate. That Court is not justified in rejecting any of the
Sessions of witnesses so sent up unless it has good reason to believe that such witness
witnesses Kent
u|i by the com came into the Court-house with a predetermined intention of giving false evi
mitting Magis dence. Queen-Empress v. Banhhandi, I. L. B., 15 AH., 0 (1892).
trate.
Witness for the At atrial before the High Court in the exercise of its original criminal juris
Crown—Duty of diction, it is not the duty either of the prosecution or of the Court to examine
the prosecution
with regard to nny witness merely because he was examined as a witness for the Crown before
the production the committing Magistrate, if the prosecution is of opinion that no reliance
of witnesses. can be placed on such witness's testimony. All that the prosecution is bound
to do is to have the witnesses who were examined before the committing
Magistrate present at the trial so as to give the Court or counsel for the de
fence, as the case may be, an opportunity of examining them Queen-Em
press v. Stanton, I. L. B., 14 All., 521 (1892).
1'roseculor's The giving of any documentary evidence by an accused person iluring
right of reply—
Tendering wit the cross-examination of the witnesses for prosecution, and before bo is
nesses for cross- asked under section 28!) if he means to adduce evidence, does not give a
examination. right of reply to the prosecution. In a trial before a Sessions Court the
prosecution is not bound to tender for cross-exttinination all the witnesses called
before the committing Magistrate. The Court would not call a witness
on whose evidence it could not put implicit reliance. Empress of India v.
Kali Prosotmo Doss, I L. R., 14 Cul., 245 (1886).
Public Prosccu Held by the full bench that a person appointed by the Magistrate of
tor appointed
by Magistrate, the District, under section 492 of the Code of Criminal Procedure, 1882,
power of. to be Public Prosecutor for the purpose of a particular case tried in the Co art
of Session, has not the power of a Public Prosecutor with regard to with
drawal from prosecution under section 494. Queen-Empress v. Madho. I. L.
R., 8 All., 291 (1886).
Duty of Public It is the duty of Pulilie Prosecutor at a trial before the Court of
ÔTi-eproduetion Session to call and examine all material witnesses sent up to the Court on
of material wit- behalf of the prosecution, and the Judge is bound to hear all the evidence
ncsses for upon the charge. The Public Prosecutor is not bound to call any wit
Crown. nesses who will not, in his opinion, speak the truth or support the points he
desires to establish by their evidence ; hut in such circumstances he should
explain to the Court that this is his reason for not calling these witnesses, and
he should offer to put them in the box for cross-examination by the accused
at their discretion. In the absence of any such explanation, or of other
reasonable grounds apparent on the face of the proceeding, inferences un
favourable to the prosecution must be drawn from the non-production of its
witnesses. Queen-Empress v. TulUt, I. L. R., 7 All., 904 (1885).
Duty of the Where u Sessions Judge gives it as a sufficient reason for the non-pro
prosecution to duction of certain witnesses in Court on the part of the prosecution that they
produce wit- hud been examined by the committing Magistrate against the express wish
of the police-officer in charge of the prosecution : Held that that was not a
valid ground for the non-production of the witnesses in the Sessions Court.
In conducting a case for the prosecution, all the persons who are alleged or
and exumined. Queen-Empress v. Ram Saliai Lull, I. L. R., 10 Cal. 1070
(1884).
Duty of pro- It is primAfacie the duty of the prosecution to call all the witnesses
■ecution. who prove their connection with the transaction connected with the prosecu
tion and who must Vie able to give important information. The Emarest v
Dhumo Kazi, I. L. R., 8 Cal., 121 (1881).
Ss. 494-495 ] Supplementary Provisions.
494. An yPublic Prosecutor appointed by the Governor- Effect of wjtfi-

General in Council or the Local Government may, with the c:>n- prosecution,
sent of the Court, in cases tried by jury before the return of the
verdict, and in other cases before the judgment is pronounced,
withdraw from the prosecution of any person ; and, upon such
withdrawal,—
(it) if it is made before a charge hits been framed, the
accused shall be discharged ;
(l>) if it is made aftjr a charge has been framed, or when
under this Code no charge is required, he shall be
acquitted.
A prisoner committed to Sessions on u charge eanuot ho discharged by Discharge of
the Sessions Court under section 494 of the Code of Criminal Procedure, 1882, S!ituIiUrto '"Se's-
bnt must he convicted or acquitted. Where a prisoner was erroneously dis- sions—New
charged by a Sessions Court under section 4!M (<f) : Held that, as the prisoner 'r'»'«
was entitled to be acquitted, a conviction obtained on a second trial for the
same offence was had in law. Queen- Einpre»» v. Sifaranui, I. L. B., 12
Mad., 35 (1888).
Held by a Full Bench that a person appointed by the Magistrate of the Public l'rosocu-
District under section 4'J2 of the Code of Criminal Procedure, 1882, to be Public y£ "SftJJistrnto,
Prosecutor for the purpose of a particular case tried in the Court of Session, power o(.
has not the power of a Public Prosecutor with regard to withdrawal from
prosecution under section 4'.,4. Quten-Eiiiprcms v. Mad/to, I. L. II., 8 All., 2'Jl
(188G).
495* (J) v .. Anv., • Magistrate
0 .. inquiring iuto ,,or trying
,1 JO any J Per»»»«°»
conduct pro-to
ease may permit the prosecution to he conducted by any person secutiou.
other than an officer of police below a rank to be prescribed by
the Local Government in this behalf with the previous sanction
of the Governor-General in Council, but no p >rson, other than the
Advocate-General. Standing Counsel, Government Solicitor, Public
Prosecutor or other officer generally or specially empowered by
the Local Government in this behalf shull be entitled to do so
without such permission
(2) Any such officer shall have the like p nver of withdraw
ing from the prosecution as is provided by section 491, and the
provisions of that section shall apply to any withdrawal by such
officer
(3) Any person conducting the prosecution may do so
personally or by a pleader.
(4) An officer of police shall not be permitted t > conduct
the prosecution if he has taken any part in the investigation int >
the offence with respect to which the accused is being prosecuted.
The provisions of section 23 of Bombay Act VII of 18t>7 have not been Power of police-
superseded by section 4'Ju of the Code of Criminal Procedure, 1882, but are °,
still in force. Queen-Empress v. Utiitkerapa, I. L. R., 8 Bom., 534 (1884). tor to prosecute.
532 Supplementary Provisions. [Ch. xxxix.
Conduct or With the exception of Advocate-General, Standing Counsel, Government

Adwato™ ''y Solicitor, or other officer generally or specially empowered by the Local
Attorney—Per- Government in that behalf, no person, whether counsel or attorney, can claim
mission'by the right to conduct the prosecution of any criminal case without the per-
Mani.trate. 0f tne Presidency Magistrate. The Empress v. Butokristo Dusts, I. L.
B., 6 (Jul., 59 (1880).
CHAPTER XXXIX.
Of Bail.
biuoire'Sf'u 496. When any person other than a person accused of a
' non-hailable offence is arrested or detained without warrant by an
officer in charge of a police-station, or appears or is brought be
fore a Court, and is prepared at any time while in the custody of
such officer or at any st tge of the proceedings before such Court
to give bail, such person shall be re'eased on bail :
Provided that such officer or Court, if he or it thiuks fit, may,
instead of taking bail from such person, discharge him on his exe
cuting a bond without sureties for his appearance as hereinafter
provided.
For form oj bond and bail-bond on a preliminary inquiry
before a Magistrate, see schedule V, No. 42.
Petition con- WLcre a prisoner applied to the High Court to be admitted to bail pend-
Uining defnma- jnf, t],e disposal of his appeal, an 1 the petition contained defamatory allega-
wSnstTryi'nl-8 lions, consisting (inter alia) of irrelevant attacks on the trying Magistrate
Magistrate-" and and other officers in the service of Government of In lia, the Court refused to
otffierr pul)lic a,l°w tliu petition to be tiled, and ordered it to be returned. In re Clire Dur-
omcera. ^ j L R ^ lg ^m
Bail—Illegal The practice of leaving to the police the decision as to the sufficiency of
practice. ' bail, when bail has been ordered by the Court, is contrary to law. The duty
of deciding as to its sufficiency or otherwise is with the Court itself, and not
with the police. Queen-Empress v. Guyitri Prosit nno Ghusal, I. L. It., 15
Cal., 455 (1888).
Application for The proceeding in which it has to ba determined whether an accused per-
bau—Judicial son should be admitted to bail by a Magistrate in a judicial proceeding, and, us
proceeding. 00gnil!ubie by the High Court un ler section 2'J7 of the Code of Crimi
nal Procedure, 1872. Manikam Mudali v. The Queen, I. L. R , 6 Mad., 63
(1882).
botaken\n com 497. (7) When any person accused of any non-bailable
of non-bailable offence is arreste 1 or detained without warrant, by an officer in
otfonce charge of a police-station, or appears or is brought before a Court,
he may be released on b iil, but he shall not be so released if there
appear reasonable grounds for believing that lie has been guilty
of the offence of which he is accused.
(2) If it appears to such offeer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are
Ss. 496-499.] Supplementary Provisions. 533
not reasonable grounds for believing that the accused has commit
ted such offence, but that there are sufficient grounds for further
inquiry into his guilt, the accused shall, pending such inquiry, be
released on bail, or, at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as
hereinafter provided.
{3) Any Court may, at any subsequent stage of any proceed
ing under this Code, cause any person who has been released
under this section to be arrested, and may commit him to cus
tody.
The practice of leaving to the police the decision as to the sufficiency of Bail—Illegal
hail, when bail lias heen ordered by the Court, is contrary to law. The duty P™0"™-
of deciding as to its sufficiency or otherwise is with the Court itself, and not
with the police. Quetn-Emprett v. Gayitri Protunno Ghosal, I. L. K., 15
Cal., 455 (1888).
When an accused person is first brought before a Magistrate, and a Bf^!^^™*ntl"
remand is required by the prosecutor, it is ordinarily sufficient to show by the taking evidence
evidence of a police-officer that the police are in possession of information, before refuting
believed to be reliable, that the accused has committed an offence ; but when bai1-
the Magistrate in refusing bail, and with each remand the necessity of evidence
of guilt becomes stronger. Pommsami Chetli v. 'Ihe Queen, I. L. R., 6 Mad.,
09 (1882).
The proceeding in which it has been determined whether an accused Application for
person should be admitted to bail by a Magistrate is a judicial proceeding, and, pj^. iHn!;0
as such, cognizable by the High Court under section 297 of the Code of Cri
minal Procedure, 1872. ilanikam Mu Mi v. The Queen, I. L. B., 6 Mad..
63 (1882).
498. The amount of every bond executed under this Cha| - ^'{^JjJ, dir*£>'
ter shall be fixed with due regard to the circ imstnces < f the case. iwiiorreUuctiou
and shall not be eice.-sive ; aud the High Court or Court of"
Session may, in any case, whether there be «n appeal on convic
tion or not, direct that any person be admitted to bail, or that the
bail required by a p dice officer or Magistrate be reduced.
The Court of Session has no power, under section 390 of the Code of Cri- mu-B%\-$21'
mminal Procedure, 1K72, to admit a convicted person to bail, a conrirted person liom Court,
not being an accttted jirrson within the meaning of that section. Queen v,
Thakur Parshad, I. I,. I!., 1 All , (F. B.) 151 (1870).
499. (/) Before any person is released on bail or released Bond ofaccused
on his own bond, a bond for such sum of money as the police- and *ureti9S-
officer or Court, its ti e case may be, thinks sufficient shall be exe
cuted by such person, and, when h.' is released on bail, by one or
more sufficient sureties c mditioned that such person shall attend
at the time and place mentioned in the bond, and shall continue
sO to attend until otherwise direct'. d by the police-officer or Court,
as the case may be.
534 Supplementary Provisions. [Ch. XL .
(2) If the case so require, the bond shall also bind the person
released on bail to appear when called upon at the High Court,
Court of Session or other Court to answer the charge.
D>»eh»rec from 500. (1) As soon as the bund has been executed the person
custody. for wnoso appearance it has been executed, shall be released ; and,
when he is in jail, the Court admitting him to bail shall issue an
order of release to the officer in charge of the jail, and such officer
on receipt of the order shall release him.
(2) Nothing in this section, section 496 or section 497, shall
be deemed to require the release of any person liable to be de
tained for some matter other than that in respect of which the
bond was executed.
For form oj warrant to discharge a person imprisoned on
failure to gire security, see schedule V, No. 43.
•nffloTent °r4" 501. If, through mistake, fraud or otherwise, insufficient

when that first sureties have been accepted, or if they afterwards become insuffi
cient! ins"m" cient, the Court may issue a warrant of arrest directing that the
person released on bail be brought before it and may order him
to find sufficient sureties, and, on failing so to do, may commit
him to jail.
Discharge of 502. (i; All or any sureties for the attendance and appear-
•ureties. ance 0j- a person released on bail may at any time apply to a Ma
gistrate to discharge the bond, either wholly or so far as relates to
the applicants.
(2) On such apj lication being made, the Magistrate shall
issue his warrant of arrest directing that the person so released
be brought before him.
(3) On the appearance of such person pursuant to the war
rant, or on his voluntary surrender, the Magistrate shall direct
the bond to be dischaged either wholly or so far as relates to the
applicants, and shall call upon such person to find other sufficient
sureties, and, if he fails to do so, may commit him to custody.
CHAPTER XL.
Ok Commissions kok tiib Examination of "Witnesses.

When atten- 503. (/) \Y henever, in the course of an inquiry, a trial or
nmmaj- he" anJ' other proceeding under this Code, it appears t > a Presidency
dispensed with. Magistrate, a District Magistrate, a Court of Session or the High
Court that the examination of a witness is necessary for the ends
of justice, and that the attendance of such witness cannot be pro
cured without an amount of delay, expense or inconvenience
which, under the circumstances of the case, would be unreason
able, such Magistrate or Court may dispense with such atten
dance and may issue a commission to any District Magistrate or issue or com-
Magistrate of the first class, within the local limits of whose proeedurT'1
jurisdiction such witness resides, to take the evidence of such ,here""der-
witness.
(2) When the witness resides in the territories of any Prince?
or Chief in India in which there is an officer representing the
British Indian Government, the commission may be issued to such
officer,
(3) The Magistrate or officer to whom the commission is
issued, or, if he is the District Magistrate, he or such Magistrate
of the first class as he appoints in this behalt, shall proceed to the
place where the witness is or shall summon the witness before
him, and shall take down his evidence in the same manner, and
may for this purpose exercise the same powers, as in trials of
warrant-cases under this Code.
(4) Where the commission is issued to such officer as is
mentioned in sub-secLion {2\ ho may delegate his powers and
duties under the commission to any officer subordinate to him
whose powers are not less than those of a Magistrate of the first,
class in British India.
r88
i- (Evidence
■ • Act). ' Evidence .1 given
• 1 u by1 a witness
i 1 -i.in • a judicial
1 j. c«rt*'n uvi-01
proceedmg, or betoreany person authorised by law to take it, is relevant denepfor prov-
for the purpose of proving, in a subsequent judicial proceeding, or in a ™*g™ *j|ôa.
later stage of the same judicial proceeding, the truth of the facts which Sj^the^trulh
it states, when the witness is dead or cannot be found, or is incapable of stated* erem
giving evidence, or is kept out of the way by the adverse party, or if his
presence cannot be obtained without an amount of delay or expense
which, under the circumstances of the case, the Court considers
unreasonable :
Provided—
that the proceeding was between the same parties or their represen
tatives in interest ;
that the adverse party in the first proceeding had the right and
opportunity to cross-examine ;
that the questions in issue were substantially the same in the first as
in the second proceedings.
Explanation. —A criminal trial or enquiry shall be deemed to be a
proceeding between the prosecutor and the accused within the meaning
of this section.]
536 Supplementary Provisions. [Chap. XL.
Commiaaion to It is doubtful if a Presidency Magistrate in tho Town of Calcutta lias

— JSifmmiiVif8* Power t° issue a commission under sections 503 to 507 of Act X of 1882 to
lady-Power of examine a witness residing within his own jurisdiction ; but there is nothing in
Presidency the Code to prevent a Presidency Magistrate examining a witness within his
Magistrate. jurisdiction at some place other than the Court-house. Where a Presidency
Magistrate refused, on the ground of want of jurisdiction, to grant a com
mission for the examination of a pardaiuishiu lady, but offered to take her
evidence in his Court when cleared for the purpose, or in his private room in
the Court-house, and she applied to the High Court for a commission being
granted, or for such other order as they might deem proper, the High Court
on revision directed that if the lady would take a house or suite of rooms not
far from the Magistrate's Court, and pay all other costs which the Magistrate
deemed reasonable and proper, he should not enforce her attendance in Court,
but examine her in the place so appointed, in the presence of the parties con
cerned, and in the manner in which pardanashin ladies are ordinarily examined.
Hem Cortmaree Dassee v. Queen-Empress, I. L. II., 24 Cal., 551 (181*7).
Evidence takon Depositions taken on commission in criminal cases, although inadmissible
SdmtariWHty0"'
oI.ml8S admittedC"aPter
unJer under XL of t,ie33 Criminal
section ProcedureAct
of the Evidence Code (Act1872
(I of X of 1882),
), if may be
the require
ments of the proviso to that section have been complied with. The words
" opportunity to cross-examine " in the proviso to section 33 do not imply
that the actual presence of the cross-examining party or his agent before the
tribunal taking the evidence is necessary. To make evidence admissible
against an accused person under section 33 of the Evidence Act, the fact
that he had full opportunity of cross-examination, if not admitted, must be
proved. Quitre.—Whether the opportunity to administer cross-interrogatories
under a commission is an " opportunity to cross-examine7' within the meaning
of the proviso to section 33 of the Evidence Act so as to render the evidence
taken on interrogatories admissible. Queen- Empress v. Ham Chandra Gocin l
Harthi, I. L. R., 19 Bom., 749 (1895).
onidTOmmisS Evidence taken under a commission issuing from the Court of the Chief
—Commission Presidency Magistrate during the course of an enquiry before him cannot he
issued by Chief used in evidence at the trial before the High Court under section 507 of the
JNtistrau. Criminal Procedure Code, 1882. Held further, that on the facts before the
High Court it was also inadmissible under section 33 of the Evidence Act.
Queen- Empress v. A. M. Jacob, I. L. R., 19 Cal., 113 (1891).
srauum for'of- ^ British searnan.who stood charged with tho murder of a fellow sailor
fences commit- 011 board a British ship on the high seas, was tried by a Judge of the High
ted on British Court, under the Code of Criminul Procedure, 1882 ; the chief evidence
hi'ih seas!*18 against the prisoner being that given in the depositions of the captain and
second officer of the ship, taken on commission ; this evidence was admitted
in evidence, and the prisoner was convicted and sentenced. It was objected
that, under section 207 of the Merchant Shipping Act of 1854, the prisoner
ought to have been tried in every respect as though the trial had been held
at the Central Criminal Court in London, and that the law of evidence to be
applied was that prevailing in England. Held, on a case certilied by the
Advocate-General under clause 20 of the Letters Patent, that the prisoner had
been properly tried according to the ordinary practice of the High Court,
and that the evidence was admissible against him. Queen-Empress v. Barton,
I. L. 11, 10 Cal., 238 (1889).
Panlanatltiti Although there is no provision in the Criminal Procedure Code, 1882,
'âmire0!!!*' wn*cn protects pardanashin ladies from appearing in a Court of Justice,
Court. nevertheless it is very undesirable to compel the attendance of such persons.
It cannot bo admbtcd as a general principle that pardanashin ladies whose
evidence is requited in criminal trials are to be allowed to compel the Courts
s. 503.] Supplementary Provisions. 537
to examine them at some other place than the Court-house itself. Where a
Magistrate considered it necessary to take the evidence of a pardawixhiu lady,
who objected to appear in Court, the High Court directed him to make ar
rangements so as to take her evidence either in an empty Court-room in the
presence of himself, the accused, and the pleader for the prosecution, or, if
no empty Court room were available, in his own private room or some other
room in the Court- building. lure Bamut Bibi,l. L. B., 12 All., 09 (1881*3
A Hindu lady having been summoned as a witness on behalf of an ac- .
etised applied, under section 503 of the Code of Criminal Procedure, 1882, mSion by""
to be examined by commission on the ground (inter alia) that she was a commission.
upurdaiuuhin" and that her enforced appearance in a Criminal Court would
entail a forfeiture of her dignity and position in Hindu society. Held, that
such application was properly made under the section, and that, under the
circumstances of the case, the order prayed for could be made. In re Din
Tarini Uebi, I. L. li., 15 Cal., 775 (1888)
At the trial of a person for an offence under section 411 of the Penal Commission for
Code, the Court of Session, under section 33 of the Evidence Act, 1872, used *f wISSs"-"^1-
against the accused the evidence of the owner of the property in respect of tion ss. Act I of
which the accused was charged, and of his wife, taken by commission dur- 1872-
ing the enquiry, and the evidence of the servant of those persons taken at
the enquiry, and also the evidence of the owner of the property taken during
the trial under a commission issued by the Sessions Judge under section 503
of the Code of Criminal Procedure, 1882. The grounds upon which the
Sessions Judge admitted the evidence taken during the enquiry were that
the attendance of the witnesses could not be procured without an expense of
]{s. 500, an amount which he considered unreasonable ; that the witnesses
would be inconvenienced', and that their evidence did not concern the ac
cused personally, having reference only to the identification of the property
in respect of which the accused was charged. Held, that the Sessions Judge
had improperly admitted such evidence. Inconvenience to witnesses is no
ground allowed under section 33 of the Evidence Act, and the question of
identification was a most material one, and the evidence of the witnesses
in question was of the utmost moment, the whole case resting on it ; and as
regards the ground of expense, it was impossible to consider the amount
unreasonable, considering that the entire case rested on the evidence of those
witnesses, and that the accused had not cross-examined those whose evidence
had been taken by commission, nor, looking at bis position, could ho arrange
for their cross-examination. Held also that, on similar grounds, the Sessions
Judge was not justified in issuing a commission under section 503 of the
Code. Queen-Empress v. T. Burke, I. L. B., 0 All., 224 (1884).
If when evidence is taken before commissioners, a document is tendered Evidence taken
and objected to on any ground, the opposite party is not precluded from ob- ^lobjecttoiHto"
jecting to the document at the trial on any other ground. It is not necessary the admissibi-
to state all the objections to the admissibility of a document when it is first {^"I^Sc'rl"^" "
tendered, but the party objecting is at liberty to take any fresh objection,
whenever the party producing the document tenders it in evidence. Where
a commission to take evidence is issued to any place beyond the jurisdiction
of the Court, issuing the commission, it is not necessary, in order to admit
secondary evidence of the contents of a document, that the party tendering
it should have given notice to produce the original, nor is it necessary for
him to prove a refusal to produce the original. Ilalli v. Can Kion Stree,
I. L. II., 9 Cal., 939 (1882).
The High Court refused to issue a commission in a criminal case, on the Examination of
ground that such a course would be unsatisfactory anil dangerous to the witness-Coin-
interests of the prisoner. The Empres* v. li. P. Omnsell, I. L. B., 8 Cal., 896 n"s"on-
(1882).
538 Supplementary Provisions. [Chap. XL.
Evidence of Go Where a Government servant who had executed his recognizance to

vernment ser appear and give evidence for the prosecution of a criminal trial tu take place
vant ordered on in the High Court of Bombay was subsequently ordered to a distant station
service-
on the public service, and could not, with due regard to the public interests,
return to Bombay in time for the trial : Held, on the application of Govern
ment, that his evidence might be]taken by commission before his departure
from Bombay under the provisions of section 76 of the High Court Crimi
nal Procedure, Act X of 1875. Empress v. Bal Gaugadhnr Tilai, I. L. R.,
6 Bom., 285 (1882).
Semlde, that in criminal cases ' pardanashiii " are not of right exempted
Kxnmhmt ion from personal attendance at Court. Also that the word " inconvenience " in
by rontmi*Mon. section 330 of the Code of Criminal Procedure, 1872, empowers the Courts to
allow examination by commission in criminal cases where a witness, accord
ing to the manners and customs of the country, ought not to appear in
public. The complainant in a case of defamation, alleging that she was a
" panlaiiashlu," applied to be examined by commission, llrtd, that (he fact
that she was a complainant, and not merely a witness, materially altered licr
position as regards the question whether she ought not to be exempted from
the personal appearance in Court, and that, under the circumstances, she
ought not to be examined by commission, but ought to attend personally to
be examined in Court. In re Furid-nn-Sissa, I. L. K., 5 All., "J2 (1882).
Evidence of wit The evidence of a witness taken upon commission is not admissible in a
ness taken Upon criminal trial held before the High Court unless it can be shown that such
oo»nmission,
when admissi evidence was so taken upon an order made by that Court under section 7G of
ble. Act X of 187.0, or unless it is admissible under section 33 of the Evidence
Act. The Empress v. Dabee Parsha I, I. L. R., 6 Cal., 532 (1881).
Commission to Held by the full Court at Bombay that it had no power to issue a commis
lake evidenco- sion out of its jurisdiction (/'. e., to Pondicherry and .Mauritius) in a criminal
powcr of Hiirli case on an application by the accused. Empress v. Moorga Chettg, I. L. IS.,
Court.
5 Bom., 338 (1881).
A pardanashin woman summoned as a witness in a criminal case has :t
female — Itijrht right to be exempted from personal attendance at Court, and to be examined
to be oiamined on commission. In re llurro Soonderg Chnwdhrahi, I. L. 1!., 4 Cal., 2(J
on commission.
(1878).
Commission in 504. (7) If the witness is within the local limits of the
'urisdiction of any Presidency Magistrate, the Magistrate or Court
issuing the commission may direct the same t > the said Presidency
Magistrate, who thereupon may compel the attendance of, and
examine, such witness as if he were a witness in a cise pending
before himself.
(2) Nothing in this section shall be deemed to affect the
power of the High Court to issue commissions under the Slavo
Trade Act* 1870, section 3.
Parties may 505. (1) The p.irties to any proceeding under this Code iu
examine wit- which a commission is issued, may respectively forward any
interrogatories in writing which the Magistrate or Court directing
the commission may think relevant to the issue, and the Magis
trate or officer to whom the commission is directed, shall examine
the witness upon such interrogatories.
*3'J and 40 Vict., C. 40.
Ss. 504-507.] Supplementary Frovisions. 539
(2) Any such party may appear before such Magistrate or
officer by pleader, or, if not in custody, in person, and may exa
mine, cross-examine and re-examine (as the case may be) the said
witness,
506. Whenever, in the course of an inquiry or a trial or ^fJU^J^f,^",]
any other proceeding under this Code before any Magistrate other Mm'iHtrnto to
than a Presidency Magistrate or District Magistrate, it appears "ITmmnissio"".0
that a commission ought to be issued for the examination of a
witness whoso evidence is necessary for the ends of justice, and
that the attendance of such witness cannot be procured without
an amount of delay, expense or inconvenience which, under the
circumstances of the case, would he unreasonable, such Magistrate
shall apply to the District Magistrate, stating the reasons for the
application ; and the District Magistrate may either issue a com
mission in the manner hereinbefore provided or reject the applica
tion.
507. (/) After any commission issued under section 503 or actum of oom-
section 506 has been duly executed, it shall be returned, together ,"i8,io"•
with the deposition of the witness examined thereunder, to the
Court out of which it issued; and the commission, the return
thereto and the deposition shall be open at all reasonable times to
inspection of the parties, and may, subject to all just exceptions,
be read in evidence in the case by either party, and shall form
part of the record.
(2) Any deposition so taken, if it satisfies the conditions
prescribed by section 33 of the Indian Evidence Act, * 1872, may
also be received in evidence at any subsequent stage of the case
before another Court.
It is doulitful if u Presidency Magistrate in the Town of Calcutta has Commission to
power to issue a commission under sections 503 to 507 of Act X of 1882 to <"lami,(f
examine 11 witness residing within his own jurisdiction ; but there is nothing »«„/>(« My.
in the Code to prevent a Presidency Magistrate examining a witness within
his jurisdiction at some place other than the Court-house. Where a Presi
dency Magistrate refused, on the ground of want of jurisdiction, to grant a
commission for the examination of a pardmiti'hiu lady, but offered to take
her evidence in his Court when cleared for the purpose, or in his private room
in the Court-house, and she applied to the High Court for a commission be
ing granted, or for such other order as they might deem proper, the High
Court on revision directed that if the lady would take a house or suite of
rooms not far from the Magistrate's Court, and pay all the costs which the
Magistrate deemed reasonable and proper, he should not enforce her attcn-
denee in Court, but examine her in the place so appointed, in the presence of
the parties concerned, and in the manner in which punlunaahhi ladies are or
dinarily examined. Hem Coomaree Dassee v. Qnffn-Eiiwrena, I. L. K., 24 Cal.,
Depositions taken on commission in criminal eases although inadmissible Evidencn taken

under Chapter XL of the Criminal Procedure Code (Act X of 1882) may be "" ""amission,
admitted under section 33 of the Evidence Act ([of 1872), if the requirements ",,""'mh",,v 0l-
• No. 1 ot 1872.
540 Supplementary Provisions. [Chap. XLI.
of the proviso to that section have been complied with. The words "op
portunity to cross-examine in the proviso to section 33 do not imply that the
actual presence of the cross-examining party or his agent before the tribunal
taking the evidence is necessary. To make evidence admissible against an
accused person under section 33 of the Evidence Act, the fact that lie had full
opportunity of cross-examination, if not admitted, must be proved. Quftre.—
Whether the opportunity to administer cross-interrogatories under a commis
sion is an " opportunity to cross-examine " within the meaning of the proviso
to section 33 of the Evidence Act so as to render the evidence taken on inter
rogatories admissible. Queeti-Empress v. Ram Chandra Govhid Ifarshi, I. L.
It.. 19 Bom., 749 (1895).
ffiim"'i'r^'or 508. In every case in which a commission is issued under

trial. section 503 or section 50ti, the inquiry, trial or other proceeding
may be adjourned for a specified time reasonably sufficient for the
execution and return of the commission.
CHAPTER XLI.
Sl'ECIAL RULHS OF EVIDENCE.
Deposition ot 509. (1) The deposition of a Civil Surgeon or other medi-

new!'"' Wlt" cal witness, taken and attested by a Magistrate in the presence
of the accused, or taken on commission under Chapter XL, may be
given in evidence in any inquiry, trial or other proceeding under
this Code, although the deponent is not called as a witness.
Power to sum- (2) The Court may, if it thinks fit, summon and examine
witness . such deponent as to the subject-matter of his deposition.
Ueponrt'on.of Before the deposition of a medical witness taken by a committing Magis-

medical
" wit
'"" tratc can, under section 50!) of the Code of Criminal Procedure, 1882, be
ness.
given in evidence at the trial before the Court of Session, it must either
appear from the Magistrate's record, or he proved by the evidence of witness,
to have been taken and attested by the .Magistrate in the presence of the
accused. The Courtis neither bound to presume under section 80, nor ought
it to presume under either section 80 or section 1 14, Illustration (e) of the
Evidence Act, that the deposition was so taken and attested. Kachafi Hart
v. Queen-Empress, I. L. B., 18 Cal., 129 (1890).
Deposition of Although all depositions of w itnesses in criminal cases should be taken
medicnl witness and attested in the presence of the accused, and a few apt words should 1*
reeonTSnotC S use<' "10 âue °^ "ie deposition '° make it apparent that this has been
showing that done, there is no provision of the law which makes the attestation of the
deposition was deposition by the Court in the presence of the accused obligatory. Section
tedl'n'nceuswrs 80 of the Evidence Act therefore does not warrant the presumption that the
presence. deposition of a medical witness taken by a committing Magistrate has been
taken and attested in the accused's presence, so as to make such deposition
admissible in evidence at the trial before the Court of Session under section
509 of the Criminal Procedure Code. Queeit-Emjjreti* v. I'ohp Slnyh, I. L. li.,
10 All., 174 (1887).
Before the deposition of a medical witness taken by a committing Magis- Dwpwitisn of
trate can, under section 509 of the Criminal Procedure Code, 1882, be given !"c^f ji,l)rl™!'"
in evidence at the trial before the Court of Session, it must either appear from trnte's record
the Magistrate's record or be proved by the evidence of witnesses to have been (i°|t*'1jgV'",1ti0ll
taken and attested in accused's presence. It should not merely be presumed. was taken and
under section 114, Illustration (e) of the Evidence Act (I of 1872), to have attested in ac-
heen so taken and attested. Queen-Emjn-es* v. Hiding, I. L. R.. 9 All., 720 8 pre"
(1887).
The evidence of a medical man, who has seen, and has made a pn»t Medical witnes-
mortem examination of, the corpse of the person touching whose death the q*]0? 'J1,6"™ 0,^~
enquiry is, is admissible, firstly, to prove the nature of injuries which he pePr'ts<how eH-
observed ; and, secondly, as evidence of the opinion of an expert as to the cited—Kxamin-
nianner in which those injuries were inflicted, and as to the cause of deatb. {jfui*1 niwlica"''
A medical man, who lias not seen the corpse, is only in a position to give evi- witness who
dence of his opinion as an expert. The proper mode of eliciting such evi- Jjl",,!^60" i^f'ro"
deuce is to put to the witness hypothetic-ally the facts which the evidence of the Maîs-
the other witnesses attempts to prove, and to ask the witness's opinion on trate.
those facts. Section 323 of Act X of 1872 does not in any way preclude
the Judge at a Sessions trial from cal ing and examining the medieal witness
who has been examined before the Magistrate, and in every case in which the
deposition taken by the Magistrate is essentially deficient, or requires further
elucidation, such witness should be called and examined by the Sessions Judge.
A medical man, in giving evidence, may refresh his memory by referring to
a report which he has made of his jmul mortem examination, but the report
itself cannot be treated as evidence, and no facts can be taken therefrom.
Raghuni Singh v. The Empre**, I. L. B., 9 Cal., 455 (1882).
Per Field, J.— Under the provisions of section 323 of the Code of SSSucal*0'!*-?/-
Criminal Procedure, 1872, the examination of a medicial witness taken and ncss-lividcnce
duly attested may be given in evidence in any criminal trial, but in order >". criminal
such evidence may be admissible against any individual accused person, the n" '
examination must have been taken in the presence of the accused person.
The Empress v. Jhublmn Mahtim, I. L. II, 8 Cal., 739 (1882).
In a capital sentence ease referred to the High Court the only opinion jj.'['d;1(?al evl"
of a Surgeon as to the cause of death of the deceased which can be judicially
considered is the opinion expressed by him under examination as a witness.
In re Samiriuhlin, 10 Cal. L. 1!., 11 (1881).
A letter of a medical officer expressing au opinion is not evidence under mlntiial' officer,
sections 368 and 370 of the Code of Criminal Procedure, 1861. Tl\e Qncn v.
Kamin't Duster, 12 W. B., 25 (1869).
The substance of a report from a subordinate medical officer, with an M"1,c"1
expression of concurrence by his superior, cannot be read in evidence under
section 368 of the Code of Criminal Procedure, 1861. In re C/iintmnonee
Nye, 11 W. R., 2 (18'i9).
510. Any document purporting to Lea raport under the SiJSExaLîcr.
hand of any Chemical Examiner or Assistant Chemical Examiner
to Government, upon any matter or thing duly submitted to him
for examination or analysis and report in the course of any pro
ceeding under this Code, may be used as evidence in any inquiry,
trial or other proceeding under this Code.
A document, purporting to be a report under the hand of an "Additional RenortoP'Ad-
Chemical Examiner" upon a matter or thing submitted to him for analysis 'Jjij'k'x "A1ii 11«r!
and report, cannot be received in evidence under section 510 of the Code of
Criminal Procedure. 1882. Queen-Eiiqiress v. Atttal Muchi, I. L. It., 10 Cal.,
1020 (1881).
542 Supplementary Provisions. [Chap. XLT.
Clieiuivnl Km- Under section 370 of the Code of Criminal Procedure, 1861. the original
miner s report. 1(.p0I( 0f til(, (Jheinicul Examiner bearing his signature, and not a copy of the
report, should he put in evidence. The (Jneeii v. B'ohumbhur Dux*, 15 \V. K
4'J (1871).
Previous con- 511. In tiny inquiry, trial or other procee ling under this
Jilj'tiS," hoJv Oode, a previous conviction or acquittal may be proved, in addi-
proved. lion to any other mode provided by uny law lor the time being iu
force, —
(«) by an extract certified under the hand of the officer

having the custody of the records of the Court in which
such conviction or acquittal was had t > be a copy of
the sentence or order ; or
(/') in case of a conviction, either by a certificate signed bv

the officer in charge of the jail in which the punish
ment or any part thereof was inflicted, or by produc
tion of the warrant of commitment under which the
punishment was suffered:
together with, in each of such cases, evidence as to the iden

tity of the accused person with (he person so convicted or acquit
ted.
Ii'uiiitUuientoi [75 (P. C). Whoever, having been convicted of an offence punish-
teXSXr'."'pre- »ule.nudcr Chapter XII or Chapter XV II of this Code with imprisonment
viotis conviction, of either description for a term of three years or upwards, shall be guilty
p'Sinbiowith of anv offence punishable under either description for a term of three
three years' im- years ur upwards, shall lie subject for every such subsequent offence to
prisomnent.J transportation
: , .. tor
. lite,
,.. or to
L •imprisonment
• t oti either description
, . lor
. a torui
which may extend to ten years.]
Record of ovid- Where an accused person hus absconded, and it is intended to record
oPiccnsed"01'16 l'v'('cllcc against him in his absence, it is requisite, under section 512 of the
Code of Criminal Procedure, 1*82, that the fact of the a1 sconding of tin-
accused should he alleged, tried, anil established, before the deposition is recor
ded. Ghurbiu Bind v. The, Qtteen-Emprtn, I. L. It., 10 Cal., 10U7 (1884).
Becord of evid- 512. (1) If it is proved that an accused person has abscond-
oTaccuVelir''10 e(h !lIU' tuilt there is no immediate prospect of arresting him, the
Court competent to try or commit for trial such person for the
offence complained of may, in his absence, examine the witnesses
(if any") produced on behalf of the prosecution, and record their
depositions. Any such deposition may, on the arrest of such per
son, be given in evidence against him on the inquiry into, or trial
for, the offence with which he is charged, if the deponent is dead
or incapable of giving evidence or his attendance cannot be pro
cured without an amount of delay, expense or inconvenience which,
under the circumstances of the c.ise, would bi unreasonable.
SS-5II_512-] Supplementary Provisions. 543
(2) If it appears that an offence punishable with death or ûor^h'°vld"
transportation has been committed by some person or persons uii~ offender un-
known, the High Court may direct ' that any Magistrate oftbek"uw"'
first class shall hold an inquiry and examine any witnesses who
can give evidence concerning the offence. Any depositions so
taken may be given in evidence against any person who is subse
quently accused of the offence, if the deponent is dead or incap
able of giving evidence or beyond the limits of British India.
In 1874, live out of six persons who were named us having committed a Witness, threat-
murder were arrested anil, after enquiry before a Magistrate, were tried before jiaU^rnti—
the Court of Session and convicted. At the time of the enquiry before the Record of evid-
Magistrate, the sixth accused person absconded, as was recorded by the Magis- Jjf'JcjjJg"}}8"100
trate. In their examination before that officer, the witnesses deposed to the
absconder having been one of the participators in the crime charged against
the prisoners then under trial. In the Sessions Court the Judge did not record
that the sixth accuse 1 person had absc jude.1, and the evidence was recorded
against the prisoners then under trial only. In 1880 the absconder was appre
hended and tried before the Court of Session upon the charge of murder. At
that time most of the former witnesses were dead, and the Sessions Judge,
referring to section 33 of the Evidence Act, admitted in evidence against the
prisoner the depositions given in 1874 before both the Magistrate and the
Sessions Court. lie also admitted the deposition of a surviving witness which
had been given in 1874 before the Sessions Court. This witness now also
gave evidence against t lie prisoner. Held, that the depositions were not admis
sible in evidence under section 33 of the Evidence Act. the prisoner not hav
ing been a party to the former proceedings, and not having then had an
opportunity of cross-examining the witnesses. Ueld, however, that under the
circumstances, the depositions given in 1874 before the committing Magis-
gistrate, though not those given in Court of Session, were admissible in evid
ence under section 512 of the Criminal Procedure Code, 1882. Per SntAiou'i',
J.—That, under the special circumstances, the deposition taken in 1871 of the
surviving witness was admissible under section lo7 of the Evidence Act us
corroboration of her evidence given at the trial of the prisoner. In cross-
examination before the Court of Session, a witness stated that, when she was
before the committing Magistrate, that officer, addressing her, said :—"Ueeol-
lect, or I will send you into custody." Held, that if the Magistrate did so
address the witness, he exceeded his duty. Qwen-Enipress v. Ixhri SiinjU, 1.
L. R., 8 All., 072 (1880).
Where an accused person has absconded, and it is intended to record Uccurtl of uvid-
cvidence agaiust him in his absence, it is requisite, under section 512 of the o"acciistil°'ae
Code of Criminal Procedure, 1882, that the fact of the absconding of the
accused should be alleged, tried, and established, before the deposition is re
corded. Ghnrbin Bind v. The Q(ueii-Eiupress, I. L. if., 10 Cal., 1097
(1884).
It is essential to the admission against an accused person of the record of Jfi^J*",' utulciice
depositions taken in his absence that the conditions laid down in section 327 of accused,
of the Code of Criminal Procedure, 1872, should have been strictly complied
with. Where, therefore, there was no finding by the Court preparing the
record that the " accused person had absconded and could not after pursuit be
arrested," and no evidence upon which the Court could have come to such a
finding, held, that such record could not be used against the accused. Wahid
v. The Empress, Punj. Hoc., 1883, p. 47.
544 Supplementary Provisions. [Ck. XLII
CHAPTER XLII.
Provisinos as to Bonds.
ofôguimnra! 513. When any person is required by any Court or officer
to execute a bond, with or without sureties, such Court or officer
may^xcept in the case of a bond for good behaviour, permit him
to deposit a sum of money or Government promissory notes to
such amount as the Court or officer may fix, iu lieu of execut
ing such bond.
forfeiture °oi 514. (7) Whenever it is proved to the satisfaction of the
bond. Court by which a bond under this Code has been taken, or of the
Court of a Presidency Magistrate or Magistrate of the first class,
or, when the bond is for appearance before a Court, to the
satisfaction of such Court,
that such bond has been forfeited, the Court shall recjnl the
grounds of such proof, and may call upon any person bound by
such bond to pay the penalty thereof, or to show cause why it
should not be paid.
(2) If sufficient cause is not shown and the penalty is not
paid, the Court may proceed to recover the same by issuing a
warrant for the attachment and sale of the moveable property be
longing to such person or his estate if he be dead.
(3> Such warrant may be executed within the loc;d limits of
the jurisdiction of the Court which issued it; and it shall authorise
the distress and sale of any moveable property belonging to such
person without such limits, when endorsed by the District Magis
trate or Chief Presidency Magistrate within the local limits of
whose jurisdiction such property is found.
(4) If such penalty is not p aid and c.iunot be recovered by
such attachment and sale, the person so bound shall be liable, by
order of the Court which issued the warrant, to imprisonment iu
the civil jail for a term which may extend to six months.
(5) The Court may, at its discretion, remit any portion of the
penalty mentioned and enforce payment in p.irt only.
(6) Where a surety to a bond dies before the bond is forfeited,
his estate shall be discharged from all liability in respect of the
bond, but the party who gave the bond, may bo required to find
a new surety.
For form of warrant oj attachment to enforce a bond, see sche
dule V, No. ii.
For form of notice to surety on brtach of a bond, see schedule

V, No. 45.
For form of notice to surely of forfeiture of bond for good be
haviour, see schedule] V, No. 46.
For form of warrant of attachment against surety, see schedule
V,No. 47.
For form of commitment of the surety of an accused person
admitted to bail, see schedule V, No. 48.
For form of notice to the principal of forfeiture 0/ a bond
to keep the peace, see schedule V, No. 49.
For form of warrant to attach the property of the principal
on breach of a bond to keep the peace, see schedule V, No. 50.
For form of warrrnt of imprisonment on breach of a bond
to keep the peace, see schedule V, No. 51.
For form of warrant of attachment and sale on forfeiture
oj bond for good behaviour, see schedule V, No. 52.
For jorm of warrant of imprisonment on forfeiture of bond
for good behaoiour, see schedule V, No. 53.
Fleld'thnt the words "person bound" in section 514 of the Code of Cri- Surety—Liabl-
niinal Procedure, 1882, do not include the representative of a deceased surety ta'^vo ofPcf*-en"
who had bound himself under section 10(5 of the Code, and that such repre- ceased surety,
sentative is not liable after the deatli of the surety to bo proceeded against as
such representative in a summary proceeding under Chapter XLII of the
Code. Guhib Shah v. Quern-Empress, Puuj. Hoc, 1894, p. 77.
As there is no provision in the Criminal Procedure Code, 1882, atithoris- S^ji«-tioiitl 'of
ing a poliee-olricer to take a surety-bond for the production of any person Jj„v ,^.,-go,,.
before the police, such a bond is alt initio void ; and a Magistrate has no power
to alter it and impose fresh obligations thereunder In re Chandra Stlchar
Rat, I. L. It., 11 Cal., 77 (1884).
Held, that though section 503 of the Code of Criminal Procedure, 1872, Hwovcry of
gives the Magistrate a discretion to realize or not to realize the penalty from a j,'™tyf 1
surety the bond with whom has been forfeited, it does not extend thut discre
tion so us to enable the Magistrate to recover a less penalty than that specified
in the bond. The Empress v. Umra, Punj. Rec., 1883, p. 2.
An order escheating a recognizance or a bail-bond must be made upon Forfeiture of
evidence duly recorded in the case and not upon evidence taken in other eases, recognizance.
Where a Magistrate makes an order forfeiting a recognizance under section
502 of the Code of Criminal Procedure, 1872, the terms of the section must
be strictly followed. It is not competent to direct that, in default of payment,
the person whose recognizance is forfeited should be imprisoned, without
first issuing a warrant for the attachment and sale of their immoveable proper
ty. In re Mohesh Chandra Roy, 10 Cal. L R., 571 (1882).
Where the penalty under arrecognizance-bond has been forfeited, neither Recotiii/ance—
the Magistrate nor the High Court has power toreduce the amount of the Power t«
penalty. In re Sulci Nazi, 8 Cal. L. R., 72 (1881). duce-
35
546 Supplementary Provisions. [Ch. XLII.
Forfeiture of A Magistrate is not justified in forfeiting n recognizance under section

recognizance. 502 of the Code of Criminal Procedure, 1872, unless the party charged with a
breach of the peace has had an opportunity of cross-examining the witnesses
upon whose evidence the rule to show cause why the recognizance should not
he forfeited has been issued. The Empress v.Notin Chunder Dutt, I L R., 4
Cal.,865 (187'J).
Recognizance— The High Court has no power to reduce the amount of recognizances
CoTrt'to ' i?t'e£ wl'ich have been forfeited, butjn a case of hardship the matter should be
fere iw"hen""for- referred to Government. The Empress v. Nurul Htiaq, I. L. Ii., 3 Cal., 757
foiled. (1878). ' '
Forfeiture of On the 20th April, 1877, A was bound down to keep the peace for one year.
recognizance. 0n the 14t), o£ Ju„UUry, 1878, he was convicted of an offence and sentenced
therefor to fine and imprisonment, but no order was made for the recovery of
the penalty, though the Magistrate knew that the recognizance had been
forfeited. On the 2nd of April, 1878, the Magistrate, at the instance of a
third party, called upon A to show cause why the penalty of the recognizance
should not bo paid, and a warrant for its recovery was issued on the 6th of June,
1878. Held, that the warrant must be quashed, on the ground that the Magis
trate having inflicted a sentence of fine and imprisonment, with the knowledge
that the recognizance was forfeited, he was not competent to indict a farther
penalty on a re-consideration of the circumstances. In re Parbutti Churn
Base, 3 Cal. L. B., 40G (1878).
When a Magistrate has before him the fact that a person convicted by
him of an offence attended with violence was under recognizance to keep the
Ceace, and does not nevertheless proceed to forfeit such recognizance, it must
e held that he thought it unnecessary to do so. Proceedings taken after the
lapse of a considerable period are bad ajd contrary to the intentioi of the
law. In re Ram Chunder Lalla, 1 Cal. L. R., 134 (1877).
Recognizance— A Magistrate has no jurisdiction to call in a person who has entered into
bond. a recognizance bond under section 493 of the Code of Crminal Procedure,
1872, to pay the penalty or show cause why he should not do so, without
previous primd facie proof, by which is meant evidence on oath, that it has
been forfeited. In re Hariram Birbhan, 11 Bom. II. C , 170 (1874).
Surety—Bond— Before a warrant can issue attaching the property of a surety, he should
Warrant. be called on, under section 220 of the Code of Criminal Procedure, 1861, to
show cause why he should not pay the penalty mentioned in his bond, and
it must appear clearly on the face of the record that he had such notice given
him. Khoodet Koiburtnee v. Doorga Dais, 15 \V. R., 82 (1871).
Rocognizance— There must be a regular judicial trial and legal enquiry before an order
Forfeiture. to forfeit recognizances can be passed, and the evidence taken should be re
corded in the presence of the accused, or in the presence of an agent of the
accused duly authorised to appear in such enquiry. In re Kali Kant Km/
Choicdhry, 12 W. R., 54 (1869;.
Recognizance— Before a recognizance can bo forfeited, it must be proved that the person
Breach of the accused had either personally broken the peace or abetted some other person
P"10®' or persons in breaking it The mere fact that the accused is a servant of one
of two rival parlies for whose benefit the breach took place is not sufficient.
ihe Queen v. Kally Bhyrul Sandyal, 11 W. R., 52 (186'.t).
Surety— There is nothing in section 211) of the Code of Criminal Procedure, 1861,
Absconding- which prevents an accused person who has forfeited his bail-bond by default
Punishment. 0f appearance from being proceeded against under section 179 of the Penal
Code notwithstanding that his surety has paid the penalty mentioned in the
recognizance. In re Tajcomuddy Lahuree, 10 W. R., 4 (1868).
515. All orders passed under section 514 by any Mag's- Appeal from,
, ,1 ,i r> • f ma • , • , • J. »/ ■ . . and revision of,
trate other than a Presidency Magistrate or District Magistrate orders under
shall be appealable to the District Magistrate, or, if not so appealed, 8ectlon
may be revised by him.
A first class Deputy Magistrate decided that a bond for keeping the Forfeiture of
peace had been forfeited, and, proceeding under section 502 of the Criini- ^"Vcârc^
nal Procedure Code, 1872, levied the penalty. An appeal was entertain- Order—Appeal
ed from this order by the Sessions Judge of South Arcot and the order was —Magistrate,
reversed. A petition was then presented under section 2'J4 of the Code, pray
ing the High Court to reverse the order of the Sessions Judge. Held, that the
order of the first class Deputy Magistrate was not open to appeal. The effect
of the penultimate clause of section 502 considered. Anantluicharri v.
Ananthacharri, I. L. R., 2 Mad., 169 (1881).
516. The High Court or Court of Session may direct any P0*^,1"^^'
Magistrate to levy the amount due on a bond to appear and attend Sue on "itiZ
at such High Court or Court of Session. recogniiancc.
CHAPTER XLIII.
Of the Disposal of Property.
517. (/) When an inquiry or a trial in any Criminal °^,'f°p£."'

Court is concluded, the Court may make such order as it thinks J^'Xê"*
fit for the disposal of any property or document produced before commuted.'
it or in its custody or regarding which any offence appears to have
been committed, or which has been used for the commission of
any offence.
(<?) When a. High Court or Court of Session makes such
order and cannot through its own officers conveniently deliver the
property to the person entitled thereto, such f'ourt may direct
that the order be carried into effect by the District Magistrate.
(3) When an order is made under this section in a case in
which an appeal lies, such order shall not (esoept when the pro
perty is livestock or is suliject to speedy and natural decay) be
carried out until the period allowed for presenting such appeal
has passed, or. when such appeal is presented within such period,
until such appeal has been disposed of.
Explanation.— In this section the term property " includes,

in the case of property regarding which an offence appears to
have been committed, n >t only such property as has been origin
ally in the possession or under the control of any party, but also
any property into or for which the same may have been converted
or exchanged, and anything acquired by such conversion or ex
change, whether immediately or otherwise.
548 Supplementary Provisions. [Gh. XLIIt.
DosSd'of* ro'eJ- Where a Magistrate before wlioni nn accused person is brought omits to
fy^Property8' record (us provided by section 364 of the Code of Criminal Procedure, 1H82),
found by police statements made by the accused, he does not thereby make himself a witness
MCMedf30'' °' lin<^ 80 become disqualified from trying the case. The accused was convicted
of criminal breach of trust in respect of certain money belonging to the com
plainant, and on his conviction the Magistrate made an order under section
517 of the Code, directing that an amount equal to the monies embezzled
should be repaid to the complainant out of certain sums of money found by
the police on the person of the accused. Held, that the Magistrate had no
power to make the order under section 517 of the Code, there being nothing
to show that any offence had been committed with regard to the property, or
that it had been used for the commission of any offence. Queen-Empress t.
Fattah Chmul, I. L. R., 24 Cal., 409 (1897).
Property seized Section 523 of the Code of Criminal Procedure, 1882, does not apply to
JfagistnSe'a06- property which is produced before a Court in the course of an enquiry or trial
power to deal under a search-warrant issued by itself under section 96 of the Code. To such
perty'wherc'no Pr0Pcrty section 517 alone would apply : and if no offence is found in respect
offence is com- thereof, the Court can make no order. The property must be given back into
mittod. the possession from which it came. The scope of section 523 must be confin
ed to property seized by the police of their own motion in the exercise of the
powers conferred on them by law, for instance, under section 51, 64, 164 or
165 of the Code. Per TELANO, J —Under section 523 of the Code a Magis
trate is bound to institute an enquiry before making any order touching the
right, not of property, but of possession to the property, seized by the police.
In re Ratan Lai Rangil Das, I. L. B., 17 Bom., 748 (1892).
Summons to A complaint having been preferred against an accused for criminal

produce docu- breach of trust with reference (amongst other items) to a sum of Us.
ment or thing. 1,77,131.1.2, which sum was, in an enquiry held by the Chief Presidency
Magistrate, proved to have been paid to the accused in seventeen notes of
rupees ten thousand each, the numbers of which were identified, and the
remainder in small notes and cash; the accused on cross-examination for his
own purposes proved that fifteen of these notes were still in his possession :
whereupon an application was made, under section 94 of the Code, for a sum
mons on the accused, directing the production of these notes. This application
was refused. Subsequently the accused, through a third person, cashed five
of these notes, whereupon a second application was made, under section 94, by
the prosecution for the production of the notes or their proceeds as against the
accused and such third person. The Magistrate granted summonses on the
accused and on such third person for the production of ten notes, but declined
to grant a summons for such third person for the proceeds of the five notes
cashed. The accused produced live of these notes which were in his posses
sion or power ; the third person, however, stating that he had in 1 lis
power five of the notes mentioned in the summons, claimed a lien on
the same, and the Magistrate thereupon refused to make any order on
him. The Magistrate (a rule having been obtained against him, calling on
him to show cause why his order should not be set aside, and why the notes
or the proceeds thereof in the hands of the third person should not be pro
duced) stated in his explanatory letter that lie entertained doubts as to his power
to compel such third person to produce the live notes, inasmuch as a lien
had been claimed on them, and that he was of opinion that the preceeds
of the notes cashed, not being specilic objects, did not coine within the
purview of section 94. Held, that the Magistrate's order must be set aside.
//. //. The Nizam of Uydtrabad v. A. M. Jacob. I. L. R.. 19 Cal.. 52
(1891).
s. 517.3 Supplementary Provisions. 549
On tlie dismissal of a charge against certain persons of criminal mis- Order as to pro-
appropriation of an elephant, the Magistrate, under section 517 of the JffSjj'Jj'
Criminal Procedure Code, 1882, ordered the elephant to be given to the j,lls ^Mseu com.
Executive Engineer of the district, holding that it was the property of mitted-Dis-
Government. Held, that the dismissal of the charge being in fact a finding S^SS? °* *°"
that no offence had been committed in respect of the elephant, the Magis
trate's order was illegal and must be set aside. In setting it aside the High
Court held, however, following in re A muipunui Bui, that they had no
power to order restitution of the elephant. In re Bamdeb Surma Gostain,
I. L. E., 14 Cal., 834 (1887).
fl'x cow having been stolen the tidef, after a lapse of a year and a half, Disposal of
was convicted. Six months' after the theft, 1" innocently purchased the cow, ca": not \n."'.',
which, while in his possession, had a calf. The Magistrate, under section by'Magistrate'
517 of the Code of Criminal Procedure, 1882, ordered that the cow and calf on conviction
should be delivered up by Vtol}. Held, that as the calf was not even in of tllief"
embryo at the date of the theft, the order to deliver up the calf was illegal.
In re Vernede, I. L. R., 10 Mad., 25 (1880).
An order passed under section 517 of the Code of Criminal Procedure, Revision ol
1882, may be revised by a Court of Appeal, although no appeal has beon order although
preferred in the case in which such order was passed. Queen-Empress v. f',?rrîI><:al pre*
Ahmed, I. L. R., 'J Mad., 448 (1880).
A decree-holder preferred a complaint against his judgment-debtors, order tor the

charging them, under section 207 of the Penal Code, with concealing certain disposal of the
moveable property for the purpose of screening it from execution, borne pro- -jIa.
perty was found by the police to have been so concealed in the house of a gistrate-Appeal
third person. The chief constable took possession of it, and kept it in his cus- {0°™,*"^ °[<'"
tody pending the enquiry which the first class Magistrate was about to make court,
in the matter. Before the Magistrate entered upon the enquiry, the complain
ant caused the property in the custody of the police to be attached and sold
in execution of this decree against the accused. At the Court sale the com
plainant himself purchased the property, and thereupon the Magistrate ordered
the property to be banded over to him. This order was reversed, in appeal,
by the Sessions Judge. Held, that the order of the first class Magistrate for
the disposal of the property was not, and could not have been, made under
section 517 of the Criminal Procedure Code, 1882, as the Magistrate did not
hold any enquiry, nor form any opinion on the conclusion of such enquiry as
to whether " any offence appeared to have been committed regarding such
property." The Sessions Judge had, therefore, no jurisdiction to hear any
appeal from the first class Magistrate's order. In re Ramchandru Lothikar,
I. L. R., 10 Bom., 197 (1886).
_ Where, on acquittal, a Criminal Court passed an order for restoration of Order of Maiis-
property under section 517 of the Criminal Procedure Code, 1882, the proper tmte> restoring
course for the District Magistrate, if he thinks the order improper, is to direct fo^^.tolen-
itto be stayed under section 520, and not to treat the property as subject to District Mafris-
an order under section 523 of the Code, and set it aside. Queen-Empress v. fT^t S^.ni,'
Abhram Umar, I. L. K., 8 Bom., 575 (1884). * orter b
The provisions of section 523 of the Code of Criminal Procedure, 1882, Delivery of pro-
are wider than the corresponding provisions of the Code of 1872 (sections i»rty seized or
415 and 416), and they enable the Magistrate to enquire into the ownership "to'en-Enquiry
of property seized by the police, and deliver it to the person entitled to it CotaTlW
instead of to the person from whom it is taken. Qiieen-Enwress v Joti H,,i a»d W>-
mk, I. L. it., 8 Bom., 338 (1884). * *J
55Q Supplementary Provisions, [Ch. XLIII.
Confession Statements made to the police by accused personR as to the ownership
officer 'aJmissi- °^ property which is the subject-matter of the proceedings against them, al-
bility' of, for though inadmissible as evidence against them at the trial for the offence with
other purposes which they are charged, are admissible as evidence with regard to the owner-
rioT^wnenMp ship of the property in an enquiry held by the Magistrate under section 523 of
of property. the Criminal Procedure Code, 1882 An order, after trial, made by a Criminal
Court for the restoration of property under section 517 of the Criminal Pro
cedure Code, 1882, is conclusive as to the immediate right to possession ;
where an order has to be made under section 523, the Magistrate may, in the
enquiry, proceed on such evidence as is available, and make an order for hand
ing the property to the person he thinks entitled. This does not conclude
the right of any person. The real owner may proceed against the holder of
the articles, or for damages as for conversion. The High Court declined
to interfere with an order, made by a Magistrate under section 523 of the Code,
for the delivery of property, where the Magistrate made such order upon the
mere evidence of a confession of the accused to the police that the property
was stolen from the adjudged owner. Queen-Emprew v. Tribhotan Mami-
chand, I. L. R., 9 Bom., 131 (1884).
Destruction of A book may be obscene within the meaning of the Penal Code: although
book by order it contains but a single obscene passage. The defence to a charge of selling
Court!1""" al,d distributing certain obscene books was that they were sold and distri
buted in good faith in prosecution of a religions controversy, field, that the
excessive obscenity of such books took away the protection which their
controversial nature might otherwise have afforded them. Also that the
intention of the Reller and distributor must be gathered from the character of
the matter contained in such books. As he had chosen to sell aud distribute
what was obscene, it must be presumed that he intended the natural conse
quences of his act, namely, corruption of the minds and prejudice of .the
morals of the public. It was not sufficient for him to say that his intentions
were good. It was his public act that must be the test of his intentions, and
having done an unlawful act, it was no answer to say that he thought it
lawful. At the conclusion of the trial of a person for the sale and distribu
tion of obscene books, the Court trying him ordered the destruction of certain
copies of such books, voluntarily surrendered by him, under section 41* of
the Criminal Procedure Code, 1872. Held, that sue1.. Court was not em
powered by that section to make such an order. Emprexx of India v.
Indarman, I. L R., 3 All., 837 (1881).
Stolen property Where a person was accused of dishonestly receiving stolen property.
—Hiirh Court! knowing it to be stolen, and was discharged by the Magistrate on the ground
Jum^? Judicial t'mt tMere waH n0 0V'('l!IK'e tnat tne property was stolen, held, that the Magis-
proceedw." trate wag competent, believing that the property was stolen, to make an order
disposal. Where there is a Court of Appeal, resort should be had thereto
of revision. Qmrre. Whether the issue by the Magistrate of a proclamation
under section 416 of the Co le is a " judicial proceeding " within the meaning
of section 297. Empreng of India v. Nilambar Babu, I. L. I!., 2 All.,
27fi (1879).
Government nt A Government currency note was stolen from A and cashed by B in
currency note
Title S°°d faith for C. On the conviction of C for theft, the Magistrate ordered
theft
oforifriual own- the note to be given to B. A appealed to the Sessions Judge, who was of
er—Appeal opinion that he was not competent to interfere as a Court of Appeal under
CMhim? a"tur~ section 419 of the Criminal Procedure Code, 1872, but submitted the case for
roncynote. the orders of the High Court Held, that the case could be disposed of by
the Judge under section 419 of the Code, and that the words " Court of
Appeal in that section are not necessarily limited to a Court before which
Ss. 518-519] Supplementary Provisions. 55i
an appeal is pending. ITeli, further, that the provisions of section 76 of the

Contract Act did not apply, as the change of a currency note for money is
not a contract of sale, and that us the note came honestly into the hands or B,
the order of the Magistrate was right. The Emjjress v. Joggessur Mochi,
I. L. K., 3 Cal., 379 (1878).
A was charged before the police with theft of certain property. The ^1°^^^^
police considered that no theft had been committed, and reported the matter to jt, restoration
a second class Magistrate, who, agreeing with the police, ordered the property —Reversal of
to l>e testored to A. On application by the complainant, the District Magis- jjfa(rist™tey of
trate found that .1 hail removed, though not dishonestly, the property from the District—
B, a deceased person, and ordered the property to be given by the police to The effect of re-
B'n heirs It was so given. Held, that the provisions of Chapter XXX of versa '
the Code of Criminal Procedure, 1872, do not apply to such a case. Sections
415, 410 and 417 contemplate proceedings preliminary to, and independent of,
enquiry. Upon general principles, where there has been an enquiry or a trial,
and the accused person is discharged or acquitted by any Criminal Court,
that Court is bound to restore that property into the possession of the person
from whom it is taken, unless, as provided for by section 418, such Court is
of opinion that "any offence appears to have been committed" regarding it,
then such order as appears right for the disposal of the property may be made.
The High Court cannot direct the restoration of the property already deliver
ed by the police under the illegal order of the District Magistrate. In re
Amtapurna Bui, I. L. R., 1 Bom., 630 (1877).
An order under section 534 of the Code of Criminal Procedure, 1872, must ^^ft"0'
be founded on a finding that the person in whose favor it was made was dis- property,
possessed of specific immoveable property by the use of criminal force, which
formed a material ingredient in the matter of a criminal conviction, and it
must, in terms, restore such person to the property from which he had been
dispossessed. Mohtmt Luchwi Ditss v. Pallat Lull, 23 W. R., 54 (1875).
Where a prisoner is acquitted of the offence charged, the Court ought not Disposal of
to order the property, in respect of which the offence was charged, to be given property,
to the prosecutor. In re Ilaree Bunhhoo Saiitra, 5 W. R., 55 (1866).
518. In lieu of itself passing an order under section 517, JJjJyySSjkiJjJSS

the Court may direct the property to be delivered to the District to District or
Magistrate or to a Suliclivisional Magistrate, who shall in such Magtstrato!81
cases deal with it as it' it had been seized by the police and the
seizure had been reported to him in the manner hereinafter men
tioned.
519 . When any person is convicted of any offence which Payment toin-
includes, or amounts to, theft or receiving stolen property, and it ^"ot Pmoney
is proved that any other person has bought the stolen property Jjjj™1 on accu'
from him without knowing, or having reason to believe, that the
same was stolen, and that any money has on his arrest been taken
out of the possession of the convicted person, the Court may, on
the application of such purchaser and on the restitution of the
stolen property to the person entitled to the possession thereof,
order that out of such money a sum not exceeding the price paid
by such purchaser be delivered to him.
552 Supplementary Provisions. [Ch. XLIII
SnYer0' section . *10, . Any Coult of appeal, confirmation, reference or rdvi-

517, M8 or 619. sion may direct any order under saction 517, section 518 or section
519, passed by a Court subordinate thereto, t.i be stayed pending
consideration by the former L'ourt, and may modify, alter or
annul such order and make any further orders that may be
just.
Order for dispo- An order passed under section 517 of the Code of Criminal Procedure,
Hi of property. 1882, may be revised by a Court of Appeal,.although no appeal has been pre
ferred in the case in which such order was passed. Queen-Empress v. Ahmed,
I. L. R./9 Mad.,1448 (I88G).
Stolen property Where a person was accused of dishonestly receiving stolen property,
power* o?"™- knowing it to be stolen, and was discharged by the Magistrate on the ground
vision—" Judi- that there was no evidence that the property was stolen, held, that the Ma-
cial^ proceed- gistrate was competent, believing that the pioperty was stolen, to make an
"** order under section 418 of the Code of Criminal Procedure, 1872, regarding
its disposal. Whore there is a Court of Appoal, resort should be had there
to before application is made to the High Court for the exercise of its powers
of revision. Quiere.—Whether the issue by the Magistrate of a proclamation
under sectiou 416 of the Code of Criminal Procedure, 1872, is a " judicial pro
ceeding " within the moaning of section 297. Empress of Itulia v. Nilam-
bar Babtt, I. L. B., 2 All., 276 (1 879).
I'urrencv'uote, ^ Government currency note was stolen from A and cashed by B in
theft of-Title good faith for C. On the conviction of C for theft, the Magistrate ordered
ownelSk""1 1 tne "°'e '° ê S'ven to B. A appealed to the Sessions Judge, who was of
aul'c° order— " opinion that lie was not competent to interfere as a Court of Appeal under
Cashing a cur- section 419 of the Criminal Procedure Code, 1872, but submitted the case
rency note, for the orders of the Higli Court. Held, that the case could be dispose ! of
by the Judge under section 419 of the Code, and that the words " Court of
Appeal " in that section are not necessarily limited to a Court before which an
appeal is pending. Held, further, that the provisions of section 76 of the
Contract Act did not apply, as the change of a currency note for money is
not a contract of sale, and that as the note came honestly into the hands of B,
the order of the Magistrate was right. The Empress v. Jnggesxur iluchi,
I. L. R., 3 Cal., 379 (1878).
eiTtc'be stolen ^ was CMiirgcfl hefore the police with theft of certain property. The
— Its restore- police considered that no theft had been committed, and reported the matter to
tiun— Revcngil a second class Magistrate, who, agreeing with the police, ordered the property
the '"Mwistriitj to be restored to A. On application by the complainant, the District Ma-
of the District, gistrate found that A had removed, though not dishonestly, the property
froni B, a deceased person, and ordered the property to be given by the
police to B's heirs. It was so given Held, that the provisions of Chapter
XXX of the Code of Criminal Procedure, 1872, do not apply to such a
case. Sections 415, 416 and 417 contemplate proceedings preliminary to,
and independent of, enquiry. Upon general principles, where there has
been an enquiry or a trial, and the accused person is discharged or acquit
ted by any Criminal Court, that Court is bound to restore that property into the
possession of the person from whom it is taken, unless, as provided for by-
section 4 '8, such Court is of opinion that " any offence appears to have been
committed " regarding it, then such order as appears right for the disposal
of the property may be made. The High Court cannot direct the restoration
of the property already delivered by the police under the illegal order of
the District Magistrate. In re Amiapurna Bui, 1. L. R., 1 Bom., 630
(1877).
521> (7) On a conviction under the Indian Penal Code, sec~ i?beiio,u8io«ndf
tion * 292, section 293, section 50 L or section 502, the Court may other matter,
order the destruction of all the copies of the thing in respect of
which the conviction was had, and which aro in the custody of the
Court or remain in the possession or power of the person convicted.
(2) The Court may, in like manner, on a conviction under
the Indian Penal Code, section * 272, section 273, section 274 or
section 275, order the food, drink, drug or medical preparation
in respect of which the conviction was had, to be destroyed.
522> (7) Whenever a person is convicted of an offence ^S»«eirtSnBoV>Pa
attended by criminal force and it appears to the Court that by such immoveable
force any person has been dispossessed of any immoveable proper- pôpcrt,•
ty, the Court may, if it thinks tit, order such person to be restored
to the possession of the same.
(2) No such order shall prejudice any right or interest to or
in such immoveable property which any person may be able to
establish in a civil suit.
523.I. (7) The seizure by any police-officer of property taken î^|dureUp01J1y

tion
under section
1 • 51.
„ or, alleged
„, 0 , .or1 suspected
r, to. have
■ »been
, , stolen, •or perty oftaken
seizure pro-
found under circumstances which cr.'ate suspicion of the commis- Imcier section
sion of any offence, shall be forthwith reported to a Magistrate, 51 or 8tolen»-
who shall make such order as he thinks tit respecting the disposal
of such property or the delivery of such property to the person
entitled to the possession thereof, or if sucli person cannot be as
certained, respecting the custody and production of such pro
perty.
[2) If the person so entitled is known, the Magistrate may Procedure
order the property to h> delivered to him on such conditions (if pro^»rtyTMized
any) as the Magistrate thinks fit. If such person is unknown, the u"kll0,rn-
Magistrate may detain it and shall, in such case, issue a procla
mation specifying the articles of which such property consists, and
requiring any person who may have a claim thereto, to appear be
fore him and establish his claim within six months from the date
of such proclamation.
Section 293.—Rale etc., o( obsceno books, make the samo noxious.

etc.
,, 293.—Having in possession ob Section 273.—Selling any food or drink as
food or drink, knowing the
scene books, etc., for sale or same to be noxious.
exhibition. „ 274.—Adulterating any drug or
n 501.— printing or engraving mat medical preparation intended
ter knowing it to be defama for sale as to lessen its effi
tory. cacy, or to change its opera
,, 502.—Sale of printed or engraved tion or to make it noxious.
substance containing defa „ 275.—Offering for sale or issuing
matory matter, knowing it from a dispensary any drug
to contain such matter. or medical preitaration known
„ 272 —Adulterating food or drink to have been adulterated.
intended for sale, so as to
Supplementary Provisions. [Ch. XLIIl.
554
rPoiice-offlcers [25 (Police Act V of 1861). It shall be the duty of ever)' police-
o° '"uHcfi'imcd officer to take charge of all unclaimed property, and to furnish an in-
property. and ventory thereof to the Magistrate of the district,
be mibjcct to
Xrs "s'todis- The police-officers shall be guided as to tho disposal of such pro
posal.] perty by such orders as they receive from the Magistrate of the district.]
[Magistrate may [26 (Police Act V of 18G1). The Magistrate of the district may
and "i'sslle1 pro* J*-'1-11'11 the property and issue a proclamation, specifying the articles of
cinmation.] which it consists, and requiring any person who has any claim thereto
to appear and establish his right to the same within six months from the
date of such proclamation.
(2) The provisions of section 525 of the Code of Criminal Proce
dure, 1882, shall be applicable to property referred to in this section.]
[Confiscation ot [27 (Police Act V of 1801). (1) If no person shall within the
property if no period allowed claim such property, or the proceeds thereof, if sold, it may,
i>e"r"T "P if »ot already sold under sub-section (2) of the last preceding section,
be sold under the orders of the Magistrate of the district.
(2) The sale-proceeds of property sold under the preceding sab-
section and the proceeds of property sold under section 20 to which no
claim has been established shall be at the disposal of Government.]
Seizure of pro- By the provisions of section 523 of tho Code of Criminal Procedure,
?ioii- Order bv 1882, it is not intended that any final steps to ascertain whether the property
the Magistrate, seized on suspicion belongs to the person in whose possession it was found,
until after the expiry of the six months mentioned in the section ; but when
the proclamation has been issued and the six months have expired, then,
under the provisions of section 524, the person in whose possession the pro
perty was found can come forward and show that it is his own. Queen-Em-
prexs v. Mahalabuddiu, I. L. R., 22 Cal., 701 (1895).
Property seized Section 523 of the Code of Criminal Procedure, 1882, does not apply to
nendiV'^nen- ProPc'"ty w hich is produced before a Court in the course of an enquiry or trial
quiry or trial— under a search-warrant issued by itself under section 9j of the Code. To
MujtistrHte'sj such property section 517 alone would apply : and if no offence is found in
wtiTsnch pro- respect thereof, the Court can make no order. The property must be given
perty wh re no back into the possession from which it came. The scope of section 523 must
roitu'd '* °01"" be confined to property seized by the police of their own motion in the exer
cise of the powers conferred on them by law, for instance, under sections
51, 54, 104 or 105 of the Code. Per Tblano, J.—Under section 523 of the
Code a Magistrate is hound to institute an enquiry before making any order
touching the right, not of property, but of possession to the property, seized
by the police, in re Ratan Lai Ranrjil Das, I. L. R., 17 Bom., 748 (1892).
Evidence of Statements made to tho police by accused persons as to the ownership of
Confession" property which is the subject-matter of the proceedings against them, al-
made to police- though inadmissible as evidence against them at the trial for the offence
officer, admissi- wjth which they are charged, aro admissible as evidence with regard to the
other "purposes ownership of the property in an enquiry held by the Magistrate under section
than ns a con- 623 of the Criminal Procedure Code, 1882. An or ler, after trial made by a
fession. Criminal Court for the restoration of property under section 517 of the Code
is conclusive as to the immediate right to possession : where an order has to be
made under section 52 1, the Magistrate may, in the enquiry, proceed on sited
evidence as is available, and make an order for handing the property to tho
s. 523.] Supplementary Frovisions. 555
person he thinks entitled. This does not conclude the right of any person.
The real owner may proceed against the holder of the articles, or for damages
as for conversion. The High Court declined to interfere with an order, made
liy a Magistrate under section 523 of the Code, for the delivery of property,
where the Magistrate made such order upon the mere evidence of a confession
of the accused to the police that the property was stolen from the adjudged
owner. Queen-Empress v. Tribhovan Manelcchand, I. L. R., 9 Bom., 131
(1884).
Where, on acquittal, a Criminal Court passes an order for restoration of ^^"'re?-*
property under section 517 of the Criminal Procedure Code, 1882, the proper torinit property
course for the District Magistrate, if he thinks the order improper, is to direct J^^^L msti-ic-t
it to be stayed under section 520, and not to treat the property as subject to Magistrate,
an order under section 523 of the Code, and set it aside. Qiteen-Empress v. power ot. to set
Abhram Umar, I L. It., 8 Bom., 575 (1884). d8e'rdo 8uch or"
The provisions of section 523 of the Code of Criminal Procedure, 188.', Delivery.of pro-
are wider than the corresponding provisions of the Code of 1872 (sections 8^m-!Enquir>y
415 and 410), and they enable the Magistrate to enquire into the ownership of into ownership,
property seized by the police, and deliver it to the person entitled to it,
instead of to the person from whom it is taken Qu«n-Empres$ v. Joti Rajnak,
I L K., 8 Bom , 338 1884).
Where a person was accused of dishonestly receiving stolen property, Stjiî,Pco!in''V
knowing it to be stolen, and was discharged by the Magistrate on the ground powers of re-
that there was no evidence that the property was stolen, held, that the Magis- *'!|['|0"—roceed-
tratc was competent, believing that the property was stolen, to make an order
disposal. Where there is a Court of Appeal, resort should be had thereto
of revision. Qiurre.—Whether the issue by the Magistrate of a proclamation
under section 416 of the Code of Criminal Procedure, 1872, is a "judicial
proceeding " w ithin the meaning of section 21*7. Empress 0/ India v. Nilam-
barBabu,l.h R., 2 All., 276 (1879).
A was charged before the police with theft of certain property. The property
police considered that no theft had. been committed, and reported the matter aMcired^tobe
to a second class Magistrate, who, agreeing with the police, ordered the property r^torntkm
to be restored to A On application by the complainant, the District Magistrate heversal ot the
found that .1 had removed, though not dishonestly, the property from B, a jfwutrateol
deceased person, and ordered the property to be given by the police to B'h the district,
hairs, [t w.h s > given. Held, that the provisions of Chapter XXX of
the Code of Criminal Procedure, 1872, do not apply to such a case. Sections
415, 416 and 417 contemplate proceedings preliminary to, and independent of,
enquiry Upon general principles, where there has been an enquiry or a trial
and the accused person is discharged or acquitted by any Criminal Court, that
Court is bound to restore that property into the possession of the person from
whom it is taken, unless, as provided for by section 418, such Court is of
opinion that " any offence appears to have been committed " regarding it,
then such order as appears right for the disposal of the property may be made.
The High Court cannot direct the restoration of the property already delivered
by the police under the illegal order of the District Magistrate. In re Annapur-
na Bui, I. L. R , 1 Bom., 630 (1877).
Petitioner was charged with the theft of certain money found in his house, claim to pro-
and acquitted. Proclamation having been made for claimants to come in and P*rty under
claim the property, no one appeared, whereupon the petitioner preferred his 8Clzure-
claim, and asked the Assistant Magistrate to summon certain witnesses, bur
the Assistant Magistrate refused to do so, and disallowed the claim, the
Magistrate, on appeal, declining to interfere. On reference by the Judge,
556 Supplementary Provisions. [Ch. XLIV.
the High Court hehl that the Assistant Magistrate was bound to summon the
witnesses named by the petitioner, set aside that officer's order, and direct
ed him to dispose of the case after taking due steps for securing the atten
dance of the witnesses in question. Snnkhun Suhoo v. Government, 18 W. R.,
5 (1872).
Procedure
where no claim- . . 524. ,v(1)' If no 'person . ., within
. such. tperiod establishes
. his
.
ant nppciirs claim to such property, and it the person in whose possession such
moiiYiu*'1 property wus found, is unable to show that it was legally acquired
by him, such property shall be at the disposal of the Government,
and may be sold under the orders of the Presidency Magistrate,
District Magistrate or Subdivisional Magistrate, or of a Magis
trate of the first class empowered by the Local Government in
this behalf.
(J2) In the case of every order passed under this section, an
appeal shall lie to the Court to which appeals against sentences of
the Court passing such order would lie.
Power to soil 525. If the person entitled to the possession of such pro-
SSrty!a,'le pr°" Perty 's unknown or absent and the property is subject to speedy
and natural decay, or the Magistrate to whom its seizure is report
ed, is of opinion that its sale would be for the benefit of the owner,
the Magistrate may at any time direct it to be sold ; and the pro
visions of sections 523 and 524 shall, as nearly as may be practi
cable, apply to the nctt proceeds of such sale.
CHAPTER XLIV.
Of the Transfer of Criminal Cases.
HiKh Court may 526. (/) Whenever it is made to appear to the High
transfer ease or Court
itsell try it.
(«) that a fair and impartial inquiry or trial cannot be had in
any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely
to arise, or
(c) that a view of the place in or near which any offence
has been committed may be required for the satisfactory
inquiry into or trial of the same, or
(<i) that an order under this section will tend to the general
convenience of the parties or witnesses, or
(«) that such an order is expedient for the ends of justice,
or is required by any provision of this Code,
Ss. 524-526.I Supplementary Provisions. 557
it may order—
(7) that any offence be inquired into or tried by any Cou.'t
not empowered under sections 177 to 181 (both inclusive), but in
other respects competent to inquire into or try such offence ;
(ti) that any particular criminal caie or appeal, or class of
such cises or appeals, be transferred from a Criminal Court subor
dinate t > its authority to any other such Criminal Court of equal
or superior jurisdiction ;
[Hi) that any particular criminal case or appeal be transferred
to and tried before itself ; or
(iv) that an accused person be committed for trial to itself or
to a Court of Session.
(2) When the High Court withdraws for trhl before itself
any case from auy Court other than the Court of a Presidency
Magistrate, it shall, except as provided in section 267, observe in
such trial the same procedure which that Court would have ob
served, if the cas3 had not been so withdrawn.
(3) The High Court may act either 011 the report of the lower
Court, or on the application of a party interested, or on its own
initiative.
(4) Every application for the exercise of the power conferred
by this section shall be made by motion, which shall, except when
the applicant is the Advocate-General, be supported by affidavit
or affirmation.
(5) When an accused person makes an application under this
section, the High Court may direct him to execute a bond, with
or without sureties, conditioned that he will, if convicted, pay the
costs of the prosecutor.
(6) Every accused person making any such application shall jjj?1' p.jj^'fjjj
give the Public Prosecutor notice in writing of the application, »r application
together with a copy of the grounds on which it is made ; and no Son?' " SOt"
order shall be made on the merits of the application unless at least
twenty-four hours have elapsed between the giving of such notice
and the hearing of the application.
(7) Nothing in this section shall be deemed to affect any
order made under section 11)7.
[8> If, in any criminal wise or appeal, before the commence- Jpj|i1™™"t0"
ment of the hearing, the Public Prosecutor, the complainant or the under tins sec-
accused notifies to the Court before which the case or appeal is
pending, his intention to make an application under this section
in respect of the case, the Court shall exercise the powers of post
ponement or adjournment given by section 344 in such a manner
as will afford a reasonable time for the application being made
and an order being obtained thereon, before the accused is called
on for his defence, or, in the case of an appeal, before the hearing
of the appeal.
Transfer oi cri- Where a criminal case is transferred by an onler of the High Court from
SenHi£h8°Court "Court subordinate to a District Magistrate , if it is intended that the District
—lntcrpreta- Magistrate shall have power to transfer the ease to a subordinate Court, that
tion of order. intention will be expressed in the onler of the High Court. If no such inten
tion is expressed, it will be understood that, in the case of a transfer from a
Court subordinate to a District Magistrate to a District Magistrate's Court, that
District Mag strate's Court is expected to try the case itself; but, when the
transfer is from the Court of one District Magistrate to the Court of another
District Magistrate, it will be understood that, unless the contrary is directly
expressed, the Magistrate of the Court to which the transfer is made has
power and jurisdiction to apply section 1112 of Act X of 1882 and to transfer
the case to the Court of any Magistrate subordinate to him who may be compe
tent to try it. Queen-Empress v Mata Prasad, I. L. It., 19 All., 24'.) (18(.»7).
Application for On the trial of certain prisoners on a charge of dacoity, a wdtness gave
trans er. false evidence and was committed under section 477 of the Criminal Procedure
Code, 1882, for trial on a charge under section 193 of the Penal Code. After such
committal it was discovered that one of the jurors empannelled in the dacoity
case was deaf and partly blind ; and thereupon under section 282 of the Criminal
Procedure Code, 1882, the case was tried de novo before a competent jury. The
trial of the charge under section 193, Penal Code, was fixed for the Novem
ber Sessions, but on the 17th October, 1895, on prisoner's application the trial
was adjourned to 2nd December, 1895. On 20th November the prisoners
vakil put in a petition, alleging that he had moved the High Court for a
transfer of the case. On this petition coming on for disposal, the prisoners
vakil moved orally for an adjournment under section 52G-A, Criminal Proce
dure Code, 1882, which was refused On the 30th November the prisoner's
vakil put iu a petition, in which he prayed for an adjournment under section
52C-A. The petitioti was refused and the trial began on 2nd December, and
judgment was written and pronounced on 5th December. In the meantime
application hail been made to the High Court for a transfer, and that petition
was disposed of on 4th December, granting the transfer prayed, the High
Court apparently being not aware that the trial was at that time proceeding be
fore the Sessions Court. On 5th I lecembcr after the trial iu the Sessions Court
was concluded and before judgment was delivered, a fresh petititon was pre
sented for an adjournment on the ground that a telegram had been received
from the High Court transferring the case, but the Sessions Judge refused to act
upon it in the absence of orders from the High Court and delivered judgment
convicting the prisoner. During the trial before the Sessions Court the prisoner
applied for an adjournment on the ground that two witnesses for the defence
were absent, one being too ill to attend, the other not having been served with
the summons, but the Sessions Judge, considering the application was made
merely for purposes of delay and to defeat the ends of justice and that their
evidence would not be material, refused to adjourn for their evidence to he
recorded. Held, first, that the fact that the trial for dacoitv had to be com
menced de iioea did not exonerate the prisoner from the obligation to speak
the truth imposed by section 14 of the Oaths Act X of 1873 in the first trial,
which became abortive owing to the incompetency of one of the jurors.
Secondly, that section 52G-A, Criminal Procedure Code, 1882, is imperative,
but that the object of sections 344 and 52G when read together is merely to
give a party reasonable time to move the High Court and obtain its orders, and
S. 526.] Supplementary Provisions. 559
that in the present case there was sufficient time for such application to have
been made, if due diligence had been observed. Thirdly, that the order for
transfer made on 4th December, which, in fact, did not reach the Judge till
after judgment was pronounced, did not vitiate the proceedings ; and that the
Sessions Judge was not wrong in refusing to adjourn the case on the strength
of the telegram said to have been received by the prisoner's vakil, stating that
the High Court has ordered a transfer. Fourthly, that the Sessions Judge ought
not to have refused to adjourn the case in order to obtain the evidence of the
two absent witnesses that their evidence was material and must be recorded
and certified to the High Court under section 428 of the Criminal Procedure
Code, 1882. Queen-Eiupres* v.'.Virasami, I. L. R., 19 Mad., 375 (1896).
What the Court has to consider in the case of an application under sec- Transferor cri-
tion 520, Act X of 1882, is not merely the question whether there has been any Gmundsîipon
real bias iu the mind of the presiding Magistrate against t lie accused, but which transfer
also the further question whether incidents may not have happened, which, ,,e &r*nl;"
though they may be susceptible of explanation and may have happened with
out there being any real bias in the mind of the Magistrate, are nevertheless
such as are calculated to create in the mind of the accused a reasonable appre
hension that he may not have a fail and impartial trial. Furzuml All v. lltinu-
man Prasad, I. L. B., 19 All., 64 (18%).
Per Birdwood, J.—The High Court cannot, under section 526 of the Order of trans-
Criminal Procedure Code, 1882, any more than under section 25 of the Civil {^"jl""*6™ °'
Procedure Code, 1882, direct the transfer of a case, which is not properly Court — '
before a subordinate Court of competent jurisdiction to receive and try it. The Scheduled
Under section 5 of the Scheduled Districts Act (XIV of 1874), the Local Gov- oMSM) -
eminent cannot, by extending an Act which is of necessarily restricted appli- The Aden Act
cation, make its provisions applicable to an entirely new subject-matter, viz., (XIofl*6t>.
the litigation of a new local area. Accordingly, where the Government of
Bombay issued the following notification, No. 823 of 1886 :—" In exercise of
the powers conferred by section 5 of the Scheduled Districts Act (XIV of
1874), the Governor of Bombay in Council is pleased, with the previous sanc
tion of the President in Council, to extend to the island of Perim the -whole of
Act II of 1864 of the Governor-General in Council, with the exception of sec
tions 2, 17, and 23. Tho Governor in Council is further pleased, in exercise
of the powers conferred by section 6 of the Scheduled Districts Act (XIV of
1874) and by other enactments, to direct that the Resident at Aden shall be
Sessions Judge and Court of Session for the island of Perim, and shall exercise
the same jurisdiction and powers iu respect of the administration of civil and
criminal justice in the said island, and in respect of the trial of persons com
mitted for trial by the Court of Session for otlences committed in the said
island, as are vested in him iti Aden by the said Act :" Held, that the pro
visions of the Aden Act (II of 1804), which (as appears from the preamble)
deals with the litigation of Aden alone, could not be extended to Perim
without enlarging the subject-matter of the Act. Held, also, that the appoint
ment of the Political Resident at Aden as a Sessions Judge and Court of Session
for the island of Perim, made under clause («) of section 6 of the Scheduled
Districts Act (XIV of 1874), was valid and effectual with reference on'y to
the provisions of the Criminal Procedure Code, and that that portion of the
notification which regulates tho exercise by the Resident of his powers with
reference to Act XI of 1804 should be treated as surplusage. A prisoner
charged with having committed murder at Perim was committed by the
Magistrate there on the 20th August, 1885, for trial before the Political Resid
ent at Aden, by whom he was convicted and sentenced to death on the
14th September, 1885. On the 25th January, 1886, the High Court of Bom-
ba}- reversed the conviction and sentence on the ground that the Court of
Resident had no jurisdiction over the island of Perim, and that the Resident,
not having been appointed a Judge of a Court of Session for that island, was
not competent to try the prisoner. Tlie High Court ordered a re-trial before a
competent Court. On the 10th February, 1886, the Government of Bombay-
issued the notification (No. 823) iihove set forth. On the 11th March, 1886, an
application was made to the High Court of Bombay for the transfer of the case
to another Court of Session or to the High Court for trial. Held, that Perim is a
Sessions Division, and that, after the establishment, under the Code of Criminal
Procedure, of a Court of Session for the Perim Sessions Division and the appoint
ment of the Resident at Aden as Sessions Judge of that Court, the accused stood
properly committed to a Court of Session. The High Court, therefore, could
transfer the case from that Court, under section 520 of the Code, to any other
Court of equal or superior jurisdiction, or to the High Court of Bombay. Per
Jardixe, J. —After the High Court had annulled the proceedings in the Court
of the Resident at Aden as without jurisdiction, the case could not be treated as
still pending in his Court ; and as there was no Court of Session in existence at
the time of the commitment, it necessarily followed that the case remained in the
Magistrate's Court. But, whether the case was considered as pending in the
Court of a Magistrate, or of a Resident, or of a Sessions Judge, the High Court
has the power to transfer it, and that, under the circumstances, the case should
be transferred to the High Court for trial. Queen-Empress v. Maiigal Ttk-
chand, 1. L. R., 10 Bom., 274 (1880).
Jurisdiction o( Act XXI of 1870, section 8 (which corresponds with sec tion 8 of Act X
HiKh Court— of 1872, now repealed), extends to all British subjects, European or Native,
tiah°»ubtect»in Native states in alliance with Her Majesty, the law relating to offences and
Native states— criminal procedure for the time being in British India. The Code of Criminal
to"Srifii'h sub? 1>l'0<-'c,lur,;. l882i wit,| tl,c amendments introduced by Act III of 1884, is thus,
jecti in Native by virtue of that section, applicable to such British subjects, Native or Euro-
^"Je'-Cstiton- pcan. The High Court of Bombay having been vested by notification of the
tratc's Court it Governor-General of India in Council, No. 178 of 23rd September, 1874, with
8ecundernl>nd original and appellate criminal jurisdiction over European British subjects,
COTrt *to°trani being Christians, resident, amongst other places, at Seounderabad, outside the
fer lor trial a Presidency of Bombay and within the territories of His Highness the Nizam
Cantomneilt* of Hyderabad, the Cantonment Magistrate of Secundcrabad, in his character of
Magistrate's a District Magistrate, is subordinate to the High Court in criminal matters
Court. relating to Christian European British subjects in Hyderabad within the con
templation of section 520 of the Code of Criminal Procedure, 1882, as amend
ed by Act III of 1884, section 11 : and the High Court possesses, by virtue of
the appellate jurisdiction so vested in it, the power of transferring a crimi
nal case pending in the Cantonment Magistrate's Court either to itself or to
any Criminal Court of equal or superior jurisdiction The High Court, by an
order under section 626 of the Criminal Procedure Code, 1882, transferred the
present case of defamation from the Court of the Cantonment Magistrate at
Seounderabad to the High Court for trial, on the ground that no machinery
for a trial by jury existed at Secundcrabad. Queen-Empress v. W. D. EdiCttrd
andF. C. Verner, I. L. R., 'J Bom., 333 (1885).
^fsdfcTion" The mere circumstance that a trying Magistrate is tlic master of the
where complain*- complainant does not deprive the Magistrate of his jurisdiction, though it is
™itiaJllJ. ,„ ,t expedient that such a complaint should be referred to another Magistrate.
pnvaie servant.' lure
, ^ Basapa,
„ Lr rL. R.,
t> 9r> Bom.,
r> ifa
172 naaA\
(1884).
Commitment— The order of a Magistrate, committing a case to the Court of Session, is
Sessions VWi'K an order of a Criminal Court within the meaning of section 531 of the Code
sion—Jurisdic- of Criminal Procedure, 1882. If such an order, contrary to the requirements
il9D- of section 177, directs the commitment to be made to a Court of Session
which has no territorial jurisdiction, it is not to be set aside unless it appears
that the error occasioned a failure of justice. Queen-Empress v. 'thak*\
I. L. K., 8 Bom., 312(1884).
S. 526,] Supplementary Provisions. 561
The words "or other proceeding :' in section 147 of Act X of 1875 do Hi^h Court's
not include a commitment, and an application to have a commitment quashed ceXrcAct'Tx
can be entertained under the provisions of that section. Application under of 1875) -Appfi-
section 14 of that Act should he disposed of by the High Court in the exer- cation to quash,
cise of its ordinary original criminal jurisdiction" Charoo Chuiuler Mullick v.
The Empress, I. L. R., '.I Cal., 3t)7 (1882).
Statutes arc not to be held to be repealed by implication unless the JtJ^JJjPJ,',
repugnancy between the new provision and a former statute be plain and i e]tex\ i,y Im-
unavoidable Section 29 of the Letters Patent of 1865 empowers the High plication—Let-
Court to transfer for trial before itself an appeal to a Court of Sessions from 'gBa-pr'o™-'
the sentence of a District Magistrate, and this power has not been affected by dure Code, 1872.
section (14 of the Code of Criminal Procedure, 1872, which authorises the
High Court to transfer an appeal from one Subordinate Court of criminal
jurisdiction to another. Sitapathi Nai/udu v. The Queen, I. L. II., 6 Mad.,
32 (1882,'.
Before the transfer of a case from one Criminal Court to another can be Transfer o(
made, in cases in which the accuse 1 objects to the transfer, the prosecution So'"not l!<-r Ti'is
must biing forward the very best evidence to prove that a fair trial cannot tricl wliun op-
be had in the district in which the case is ordinarily triable. The Empress v. posed by
Xobo Oopal Bote, I. L. B., 6 Cal., 491 (1880). accuse!.
A charge was made against the accused o£ using criminal force under i^fo^jYvh'ce180
suction 141 of t lie Penal Code The Police Magistrate heard the evidence for Jlinmtralc to
the prosecution, and, without disbelieving it, decided it did not amount to the J1'*'1 Court —
offence charged. Held that, assuming that an error of law had been commit- Ml" « ?«/«" »f*,lM3
ted, the High Court had no power to issue a mmi'lamus to the Magistrate to
commit the defendants ; it was not a case where the Magistrate had declined
jurisdiction : he had exercised his jurisdiction, and heard the case. Held also,
it was not a case which the Court could transfer under section 147 of the High
Court's Criminal Procedure Act, 1875. The Empress v. Gasper, I. L. B., 2
Cal., 278 (1877).
In an application for the transfer of a case under section 147, Act X of Hijdi Court's
1875, in which the prisoner has been convicted, and is undergoing imprison- rturo'Vct-Ca^"
meat, it is in the discretion of the Court to order, for sufficient prima facie tnmi-feired to
cause shown, that the cass be remove 1 without notice to the Crown. Semble.— Court—
A charge under sections 292 and 294 of the Penal Code should be made iwutor'-pinrd
specific in regard to the representation and words alleged to have been exhibi- Code, sections
ted and uttered and to be obscene: and the Magistrate, in convicting, should, gj^cTllc cUiuxe
in his decision, state distinctly what wore the particular representations and
words which he foilnil on the evidence had been exhibited and uttered, and
which he adjudged to be obscene within the meaning of those sections.
Where no such specific decision has been given, the High Court, when the
case has been transferred under section 147, Act X of 1875, may either try
the case de novo or dismiss it on the ground that the Magistrate bus come to
no tiuding on which the conviction can be sustaiiiel. The Queen v. l'i>endro-
itath Doss, I. L. B , 1 Cal., 356" (1870)
The High Court has no power, under section 147, Aid X of 1875, to order Hhrh Court's
a fine to be refunded on ([Hashing a conviction The Court, in this instance, ^lure'"^'^0"
decided whether the case should he transferrred under section 147 on the notes UusotriiusdTred
of the evidence taken by the Magistrate at the trial. The Queen v. Hadjee \° Hittlj Court -
Jeebmt Box, I. L. 1!., 1 Cal., 351 (1876). ^"IJmuAtaV
, . conviction.
Au application for the transfer of a case under section 64 of the Criminal
Procedure Code, 1872, should be made, not by letter to the English Depart- X°Vml°ln^-
ment of the High Court, but before the Court in its judicial capacity, and lisli IXpnrt-
should be supported by affidavits or affirmations in the usual way. The Queen ment.
v Zahiruddin, I. L. B., 1 Cal.. 219 (1870).
36
562 Supplementary Provisions, [Ch. XLIV.
Governor-Gene- 547. (7) The Governor-General in Council may, by

ral in Council to notification in the Gazette of India, direct the transfer of any
'nvn'iid ewes" and particular criminal case or appeal from one High Court to another
appeals. High Court, or from any Criminal Court subordinate to one Hi^'h
Court to any other Criminal Court of equal or superior jurisdic
tion subordinate to another High Court, whenever it appears to
him that such transfer will promote the ends of justice, or tend
to the general convenience of parties or witnesses.
The Court to which such case or appeal is transferred shall

deal with the same as if it had been originally instituted in, or
presented to, such Court.
District or Sub- 528. (1) Any Chief Presidency Magistrate, District

M^t°tr"to may Magistrate or Subdivisional Magistrate may withdraw any case
rcfcrcascH01 fr°mi or recil! any case which he h*s made over to, any Magistrate
subordinate to him, and may inquire into or try such case himself,
or refer it for inquiry or trial to any other such Magistrate com
petent to inquire into or try the same.
Power to autho» (2) The Local Government may authorise the District
M^tr'ate'to Magistrate to withdraw from any Magistrate subordinate to him
withdraw either such classes of cases as he thinks proper, or particular
classes of cases. , „ I t > t"
classes 01 cases.
(3) A Magistrate making an order under this section shall

record in writing his reasons for making the same.
{4) The head ol a village under Madras Regulation IV of
1821 is it Magistrate for the purposes of this section.
Transfer of cri- Where an Assistant Magistrate with second class powers was directed by
uiinalcaso— the District Magistrate to take up a case of some complexity arising out of
transfer—1" disputed boundaries of land in which the accused were charged with rioting.
Probability of trespass, mischief and theft, and where, in the course of such investigation,
un rnir trial—^ ne held a lo;al enquiry extending over five days, during which he made a
ras"'-Tnmsf.'r nuniher of notes and appeared to have made a very careful and conscientious
from one Magis- investigation of the locality such as would properly he made by a person
^ca" ""JjiJiry whose duty it was to get at the facts with n view to lay the same l>eft>re
— Magistrate, some tribunal, and during such investig ition it appeared that he acquired a
collecting cyd- liu-|irc amount of information with reference to the occurrence on which lw
enquiry—Magis- had to arrive at a judicial determination, but which, by reason of the way it
trate trying Was acquired, he could not properly or legally consider iu arriving ul an ul-
cTof, to™)?6'*"" tenate decision of the case, (such information not being guarded by the
witness—Com- safe-guards by which statements on which a Judge or a Magistrate exercising
—FxanHnaUou judicial functions call act must be guarded), and where it was suggested
of Magistrate that the notes so made should be put on the record, and the Assistant Mays-
trying enw as a t,atc tender himself while trying the case as a witness to be cross-examine'!
witness. k either the prosecution or the defence : Held, that such a course could nut
be allowed, and that the Assistant Magistrate ought not to try the case, but
that it must be transferred to some other Magistrate exercising first class
powers for disposal. Whenever it is desirable for a Magistrate to view tlie
place lit which ati occurrence, the subject-inatteii of a judicial investigation

before him, has taken place, he should be careful to confine himself to such
a view of the place as to enable him to understand the evidence placed before
him, and should take care that no information reaches him with reference to
the occurrence which he lias to investigate beyond what he acquires by that
view, and if the place of the occurrence be in dispute, he would be wise in
postponing his visit till all the evidence has been recorded, if under such cir
cumstances he feels disposed to visit it at all. But where a local enquiry by a
Magistrate takes the form of an investigation into the occurrence on the site
of the occurrence instead of in his own Court, and he takes evidence on the
spot, such evidence should not be recorded unless it is protected by all the
safe-guards by which evidence, on which a Judge may act, is protected by
law. Hurl Kishore Mitra v. Abdul Baki Miah, I. L. 11., 21 Cal., 920 (1894).
A Magistrate to whose Court a case under section 355 of the Penal Code ^JJJ'^JJ'",!^™
had been transferred at a stage when all the evidence for the prosecution had „ case nlls i^,,
lieen taken, did not re-summon the witness for the prosecution but proceeded transferred nfter
to act on their evidence as if it had been taken before himself : Held, that êpv^™™t
whether such procedure amounted to an irregularity or illegality or not, it hns been
was sufficiently prejudicial to the accused to warrant the conviction being ded-
ijuashed. Queen-Empress v. Bashir Khan, I. L. H., 14 All., 346 ^1892).
A village Munsif not being a Magistrate under the Criminal Procedure Code, Villnire
a Joint Magistrate has no power under the Criminal Procedure Code, 1882, ê™"",or 01
section 528, to withdraw a case from a village Munsif and transfer it for
disposal to a second class Magistrate, iladacarayachar v. Subba Rail,
I. L. B., 15 Mad., 94 (1891).
A criminal case having l>een transferred under section 528 of the Code of Trankfjrof ori-
Criminal Procedure, 1882, the Court to which it was transferred did not recall m,xul cl"w-
the witnesses or take any fresh evidence, but decided the case upon the evid
ence recorded by the Court originally trying it. Held, that this procedure
was illegal, that section 350 of the Code did not apply, that the Court should
have commenced the whole proceeding de noeo, and that there must be a new
trial. Queen-Em/irens v. Auynu, W. N., N.-W. P., 1889, p. 130.
The provisions of section 17 of the Code of Criminal Procedure, 1872, as District Mims-
amended by section 6 of Act XI of 1874, are wide enough to empower a Dis- dr,Iâi of".jj0.
trict Magistrate to withdraw a case falling under section 491 of the same Code.
In re Dinendro Nalh Shanial, I. L. K., 8 Cal., 851 (1882).
Before a Magistrate of a district can transfer a case from a Court subor- Notice to the
dinatc to him to any other subordinate Court, notice of such intended transfer frar,^™r i,aK<oro
should be served upon the parties, so as to enable any or either of the parties ninde.
to come forward and show cause why such transfer should not be made. In
re Teacotta ShektUir, I. L. R., 8 Cal., 393 (1882).
In a case in which a Deputy Magistrate took an active part in the cap- Judge—Wit-
turc of parties charged with having been members of an unlawful assembly— r
parties whom he himself tried on that charge—it was held that he was bound
to state to the accused, so far as he could, what were the facts he himself
observed, and to which he himself could bear testimony ; and the prisoner in
such situation had a right, if he thought it desirable, to cross-examine the
Judge, whose evidence should bo recorded, and form part of the record in the
case. The proper course, however, for the Deputy Magistrate to have taken
in this case would have been to decline to try the case, anil to ask that it
should be undertaken by some other Judge. In re Hurro Chunder Paul, 20
W. H. 76 (1873).
564 Supplementary Provisions. [Ch. XLV.
"-Trial ot A Mu&istratc removed^ ease to his own tile from that of the Joint Ma
caw, gistrate after the latter hail issued warrants upon the footing of the complaint,
and immediately suspended the warrants and dismissed the complaint under
section 67 of the Code of Criminal Procedure, 1872. Held, that the Magis
trate ought to have proceeded with the case as from the stage at whic.li
he found it, and that he committed a material error by not doing so. In re
Raghoo Parciah, ID VV. R., 28 (1873).
Transfer of t a;c: Although section 3(5 of the Code of Criminal Procedure, 1801. does nut
require a Magistrate to state his reasons for transferring a criminal case from
a Court subordinate to him to his own or to any other subordinate Court, the
High Court sot aside an order of a .Magistrate transferring a case after the
subordinate Magistrate before whom it was had taken the evidence for the
prosecution, and had expressed an opinion unfavourable to the prosecution.
The Queen v. Nobocoomar Bunerjee, 14 VV. R., 12 (1870).
red" •ra"iier* " Where a case has once been made over by a Magistrate to a Deputy
trate.'y "?,S" Magistrate for trial, the Magistrate has no jurisdiction to do anything more in
the matter so long as the transfer to the Deputy Magistrate is in existeuee.
The Magistrate may withdraw the case un ler section 36 of the Code of Cri
minal Procedure, 1861, from the tiles of the Deputv Magistrate. The (Jure* v.
Mi s. Belilm, 12 VV. B., 53 (1869).
CHAPTER XLV.
Of Ibreuulab Proceedings.
irregularities' 529. If any Magistrate not empowered by law to do any of
Sptceed- the following things, namely :-
ings. _
(a) to issue a search-warrant undar section Ob ;
(6) to order, under section 155, the police to investigate au

offence ;
(c) to hold an inquest under section 170 :
(<<> to issue process, under section 186, for the apprehension
of a person within the local limits ol' his jurisdiction who
has committed an offence outside such limits ;
(e) to take cognizance oi' an offence under sectiou l'JU, sub-
sectiou (1), clause (j) or clause (b) :
(/) to transfer a case under section 11)2 :

(p) to tender a parJon under section 337 or section Sob1 ;
(//) to soil property under section 524 or section 525 ; or
(J) to withdraw a c ise and try it himself under section 528 ;

erroneously in good faith does that thing, his proceeding? shall
Ss. 529-530.] Supplementary Provisions, 565
not be set aside merely <>n the ground of his not being so cm-
powered.
For ordiuirt/ potcers of Provincial Maaitt rates, see schedule
nr.
For additional powers with which Provincial Magistrates
may be incesttd, Sf.e schedule IV.
[52 (P. C). Nothing is said to be done or believed in food faith, [Good faith.]
which is done or believed without duo care and attention.]
Section 192 of the Criminal Procedure Code, 1882, does not authorise a Cattle-Trespass
District Magistrate to transfer for trial to a subordinate Magistrate cases brier bya'aia-
which are not within the powers of that Magistrate to try either under section friatrate other
28 of the Code or under some special or local law. A District Magistrate can- trotcs's^ttied
not transfer to any Magistrate cases under section 20 of the Cattle-Trespass in soction 20—
Act (I of 1871), which are triable only by the two classes of Magistrates spe- [J."*"^ ,°( tDi.s'
eitied in that section. An order awarding compensation under section 22 of to'tnms'ferV!is<'s
the Act passed by any other Magistrate is illegal, and cannot be cured by the toa subordinate
provisions of section 529, or section 537 of the Code. Raahu Singh v. Abdul Magistrate.
Wahab, I. L. It., 23 Cal., 442 (ix%).
At a Sessions trial, the Judge, after acquitting the prisoner, passed an Acquittal ot
order withdrawing a pardon already granted to an approver (who had given JJJg'J^'f'of^'"1"
his evidence as such approver before the Sessions Court), and ordered his com- ,jon Kraiited^to
mitment. The approver was charged, tried, and found guilty. Held by approver after
Mittkk, J.—That the order withdrawing the pardon and committing the ap- ioqmttal'-Con-
prover was contrary to the provisions of section 349 of the Criminal Procedure victionon trial
Code, 1872, the words " before judgment has been passed" being words in- ' âta-Tôwer"
sorted in the section to put a limit to the time within which the power of with- 0f' High Court
drawal of the pardon conferred in the Court of Sessions may lie actually exer- to set aside,
rised, and that therefore the trial of the approver was illegal. The power of
directing commitments conferred upon the Sessions Court by section 349 of the
Code can bo exercised only before judgment has been passed. Held by
MACLEAN, J. - That it is not necessary that the order should be made liefore
judgment is passed, but that it must appear to the Judge, before he passes
judgment, that the conditions of the pardon have not been complied with ;
and that, in the present case, it was impossible to hold that because the actual
order of commitment of the accused was written (although in the judgment)
after the acquittal, therefore it did not appear to the Judge before passing
judgment that there were grounds for his order. Per Maclean J.— The High
Court mav, without reference to the Local Government, set aside a conviction
ma le upon a trial improperly originated. Tlir Empress v. Xohin Chundra
Buiiiki/a, I. L. R., 8 Cal., 560 (1882).
530* It' any Magistrate, not being empowered by law in £jr««uiaritie«
this behalf, does any of the following things, namely : — proceedings."
(a) attaches and sells property under section 8ti :

(/>) issues a search-warrant for a letter, parcel or other thing
in the Post-office, or a telegram in the Telegraph Depart
ment ;
(c) demands security to keep the peace ;
(<i) demands security for good behaviour ;
(e) discharges a person lawfully bound to be of good be

haviour ;
(/) cancels a bond to keep the peace ;
[ff) makes an order under section 133, as to a local nuisance ;
(7i) prohibits, under section 143, the repetition or continuance
of a public nuisance ;
(i) issues an order under section 144 ;
(j) makes an order under Chapter XII ;
(A) takes cognizance, under section 190, subjection (/),
clause (c), of an offence ;
(J) passes a sentence, under section 349, on proceedings re
corded by another Magistrate ;
(m) calls, under section 435, for proceedings ;
(n) makes an order for maintenance ;
(o) revises, under section 515, an order passed under section
514 ;
(p) tries an offender ;
(7) tries an offender summarily ; or
(r) decides an appeal ;
his proceedings shall be void.
See schedules III and I V which gives the ordinary and addi
tional powers oj Provincial Magistrates.
Offence origi. The accused were charged before a Magistrate of the second class with
"ble^b •BC0SI"d cau8'n& grievous hurt as members of an unlawful assembly under sections 14!'
class ilagUtrate an<^ 325 of the Indian Penal Code. The evidence showed that one of the ac-
- Subsequently cused had used an axe in causing the hurt. The Magistrate apparently ig-
by reason "f'an nore(' "''H fftct> an(* 'ie convicted the accused under section 325 of the Code,
aggravating ch- The accused appealed. The District Magistrate who heard one appeal, and
Dutv'of,(iin" in- 'ne nrs' c'll8S Magistrate who heard the rest of the appeals, were both of opi-
ferior Court— uion that the offence committed by the accused was one of causing grievous
High Court's Jiurt with a dangerous weapon, within the meaning of section 320 of the
lerence. Penal Code, and as such beyond the jurisdiction of the second class Magis
trate. But they did not think it proper under the circumstances of the case
to quash the convictions. The Sessions Judge, on examining the record of the
cose, was of opinion that, as the offence committed by the accused was not cog
nizable by the tryiug Magistrate, his proceedings were void ah initio undei
section 530 of the Criminal Procedure Code. He, therefore, referred the case
to the High Court and recommended that the convictions under section 325
should be set aside. Held, that the proceedings before the second-class Ma
gistrate were not void ab initio, as he had jurisdiction to try the accused for
offences punishable under sections 149 and 325 of the Penal Code with which
S. S3M Supplementary Provisions. 567
they were originally charged. Held, also, that, though it was the duty of the
trying Magistrate, when the evidence disclosed a circumstance of aggravation,
sucji iis the use of a dangerous weapon, which made the offence cognizable by
a higher Court, still it was not necessary to quash the proceedings, as the ac
cused were not in any way prejudiced, and the sentences were not inadequate.
Queen-Empress v. Gundya, I. L. It., 13 Bom., 502 (1889).
When an offence is tried by a Court without jurisdiction, the proceedings Aoquittal-Re-
are void undei section 530 of the Code of Criminal Procedure, 1882, and the trial—Inter-
offender, if acquitted, is liable to be re-tried under section 403. It is. there- u^h Court. *
fore, not necessary for the High Court to upset the acquittal before the re
trial can be hud. Queen-Empress v. Husain Gaibu, I. L. 15., 8 Bom., 307
(1884).
Where a Magistrate without jurisdiction commits unaccused person to the Commitment
Sessions Court, such commitment is void, and no reference to the High Court J1^}]0,"' ,n"s'
is necessary to have it set aside. In re Empress v. Alhu Mumlle, 11 Cal. L. "
I!., 65 (1882).
N'o Magistrate is entitled to split up an offence into its component parts Summary proce-
for the purpose of giving himself summary jurisdiction. If a charge of an <lim»- Unlawful
offence not triable summarily is hid and sworn to, the Magistrate must pro- JJ^,1 n^'di'v' '
coed with the case accordingly, unless he is at the outset in a position to show weapon,
from the deposition of the complainant that the circumstances of aggravation
are really mere exaggeration and not to be believed. Therefore, a Magistrate,
when he has before him a person charged with having been armed with a
deadly weapon while a member of an unlawful assembly, is not at liberty to
disregard that purt of the charge which charges the prisoner with having been
armed with a deadly weapon, and so to give himself jurisdiction to try the
case summarily, and then, by indicting a sentence of imprisonment not ex
ceeding three months, to deprive the prisoner of his right of appeal. The
Empress v. Abdml Karim, I. L R., 4 Cal., 18 (1878).
Where, on the facts found by a Magistrate, an offence is established Summary trial
which he cannot try summarily, he is not competent to convict for an offence -Jurisdiction,
made up of only some of those facts in order to give himself jurisdiction.
Such proceedings arc void under section 84, clause iv of the Code of Criminal
Procedure, because he was not empowered by law to try the offender sum
marily. /// re Ch under Seekor Sookul v. Dhurm Nath Tciraree, 1 Cal. L. R.,
434 (1878).
531a No finding, sentence or order of any Criminal Court Proceedings in
shall V)e set aside merely on the ground that the inquiry, trial or wro'"t plll(0'
other proceeding in the course of which it was arrived at or
passed, took place in a wrong sessions division, district, subdivi
sion or other local area, unless it appears that such error has in
fact occasioned a failure of justice.
A criminal appeal was presented to the Sessions Judge of the Bijnor- Sessions Court
Budaun Division at Bijnor within the said Sessions Division, but was heard 7/™™''™™^
by the said Judge at Moradabad, at which place he was empowered to exercise ted within, but
civil but not criminal jurisdiction. Held, that the trial of the appeal at Mo- heard outside,
radahad was an irregularity, but, no failure of justice being shown to have 0f êûrisdic-
been occasioned thereby, the irregularity was covered by section 531 of the tion of a Ses-
Code of Criminal Procedure, 1882, and did not render the trial of the appeal a 9ions Court-
nullity. Queen-Empress v. Fad Atim, I. L. R., 17 All., 30 (1894).
Jurisdiction— The accused was charged under section 498 of the Penal Code with
Prisoner char having enticed away a married woman, and under section 4'J7 with having
ged with two committed adultery. The woman, alleged to have l>een enticed away, resided
oiiencus. one of in Bombay, but the alleged adultery took place at Khandala, outside the ju
wliich was com
mitted outside risdiction. At the enquiry before the Magistrate in Bombay, objection was
jurisdiction — taken to his jurisdiction with regard to the charge of adultery. The Magis
Objection tak
en before Ma- trate, however, overruled the objection and committed the accused for trial.
Kistrute -Sub At the trial an application was made, on behalf of the accused, under section
sequent objec
tion taken at 532 of the Criminal Procedure Code, 1882, that the commitment should he
Sessions un quashed and a fresh enquiry directed on the ground that an objection had
der section been taken to the Magistrate's jurisdiction Held, refusing the application,
584 of Crimi
nal Procedure that the commitment being an order under section 531 of the Criminal Pro
Code, 1881. cedure Code, 1882, the commitment should not be quashed unless a failure uf
justice would be caused by proceeding with the trial. The (Jueen- Emprt*t v.
James Ingle, I. L. R., 16 Bom., 200 (18!H).
Jurisdiction The Penal Code and the Code of Criminal Procedure, 1882, have no
of Criminal application to the Tributary Mehals of Kheonjur which is on precisely the
Court—f<oc.i I same footing in that respect as Mohurbhun j. Certain persons, officers of the
are.i.
Maharaja of Kheonjur, one of whom was a resident of the Cuttaek district, and
the others residents of Kheonjur, were charged before the Deputy Magistrate
of Tajpore with certain offences under the Penal Code. They » ere convic
ted, and on appeal to the Sessions Judge, the conviction was upheld. It was
found by the Sessions Judge that the scene of the occurrence which gave
rise to the charges was within the territory of Kheonjur. Held, that the
Deputy Magistrate and Sessions Judge has no jurisdiction to try the case, and
that the conviction must be set aside. Held, further, that sections 182 and
531 of the Criminal Procedure Code had no application in the case. The
words "local area" use'd in section 182 only apply to a " local area " over
which the Criminal Procedure Code applies, and not to a local area in a for
eign country or in other portions of the British Empire to which the Code ha*
no application ; and similarly section 531 only refers to districts, divisions,
sub-divisions, and local areas governed by the Code. In re Uirhilruttinul
Dti8s v. Bhtiybut Perui ; Bichitranimd l)<i*t v. Dukhai Jutin, I. L. R.. 16
Cal., 667 (188H).
Trial in a wrOnic The order of a Magistrate, committing a case to the Court of Session, i>
Sessions i)i\i- an order of a Criminal Court within the me ining of section 531 of the Code
sion—lurisdic- of Criminal Procedure, 18K2. If such an order, contrary to the requirement*
t ion . of section 177, directs the commitment to bo made to a Court of Session
which has no territorial jurisdiction, it is not to _be set aside unless it appeal*
that the error occasioned a failure of justice. Quetn-Emprei<» v. 'J hah,
I. L. K., 8 Bom., 312 (1884).
Jurisdiction ot The prisoners, residents of the district of Singhbhum, a district in Bri-
Criminal Court, tish India, were convicted, tinder section 331 of the Penal Code, at Singh
bhum, of an offence committed in Moburbhunj. Per Garth, C. J., PoxTira
and Norms, JJ.—The territory of Moburbhunj is not within the limits of
British India; but, under the provisions of section '.I of Act XXI of 1879, ■
conviction in British India for an offence committed without the limits of
British India, is good. Per Mitter, J.—Moburbhunj is within the limits of
British India ; but seeing that the Tributary Mehals constitute a " district "
within the meaning of the Criminal Procedure Code, and that the Superin
tendent of these Mehals has been vested with the powers of a Sessions Judge
under an order of the Government of India, a conviction under the Penal
Code (having regard to the provisions of section 70 of the Criminal Proce
dure Code, 1872), ought to be set aside. Per Prinsep, J.—Moburbhunj is
within the limits of British India ; but the Acts which extend to British
India do not extend to Moburbhunj. The territory having been expressly
S. 532.] Supplementary Provisions. S69
placed beyond the ordinary legislation the law in force in British India can
not come into operation there until this exception has been removed. The
Empress v. Keshub Mohajan ; The Empress v. Udil Prasad, I. L B., 8 Cal.,
(F B.) '.»H5 (1882)
The High Court declined, under the Code of Criminal Procedure, 1872, J'roccdure-
section 70, to interfere with an order in a case under section 530, in rreK,x a" } •
which the objection as to jurisdiction was not seriously taken in the
Court below, and in which the petitioner failed in his application to the
High Court to show that he had been in any way prejudiced Per Ains-
lib, J. —The power given to the High Court under sections 2!*4 and 207
of the Code, of enquiring into the regularity of proceedings, and setting
uside proceedings which are irregular, is a limited one, and is to be ap
plied only in cases in which it appears that there had been a material
error in such judicial proceedings : and in considering what a material
error is, the Court is bound to be guided by the other parts of the
(.'ode, such as sections 70, 283, and 2H7 Sonalim Duxs v. Gooroo Churn,
Deiran, 21 W. B., 88 (.1874).
Where an offence of criminal intimidation under section 503, Penal Code Jurisdiction—
was said to have been committed during a journey by Railway from Bombay J""rl"'v"
to Calcutta, it was held that the Magistrate of Howrah had no jurisdiction to
entertain the charge, as the offence had not been committed within the actual
territorial limits of his ordinary jurisdiction : and, further, that the case did not
fall within section 07 of the Code of Criminal Procedure, 1872, that section
[Illustration («)] giving jurisdiction to the local tribunal at the place where the
complainant or the offender first stops or breaks his journey ; such journey
must \>e a continuous journey from one terminus to another. Section 70 of
the Code contemplates such an error only of jurisdiction as may arise from a case
being tried in one district or Sessions Division of a province, where it ought
properly to have been tried in the neighbouring district or Sessions Division,
and does not apply to cases in which the right local jurisdiction is a jurisdic
tion foreign to the Court which has power to order anew trial, and which
lies entirely outside the province to which the local division or district belongs,
in which the charge was actually entertained. Peerun alias Kureemun Ayah
v. C. D. Field, 21 \V. Ii., 6(1 (1874).
532. (/) If any Magistrate or other authority purporting Wl,pn >rre*u!ar
to exorcise powers duly 11 conferred,
0 n 11.1
winch were not. so " 1 conferred,
',. P l-'MUinitllK-nl-,
m.i> be vaiii-
comnrts an t.ccnsed person tor trial before a Court of Session or "'<h1.
High Court, the Court to which the commitment is made nv.iv,
after perusal of the proceedings, accept the commitment if it con-
skiers that the accused has not been injured thereby, unless, during
the inquiry and before the order of commitment, objection was
made on behalf either of the accused or of the prosecution to the
jurisdiction of such Magistrate or other authority.
(2) If such Court considers that the accused was injured, or
if such objection was so made, it shall quash the commitment and
direct a fresh inquiry by a competent Magistrate.
A Magistrate who commits a case for trial by a Sessions Court does so commitment to
in the exercise of powers duly conferred upon him, and the fact that he had Sesaiom Court
r.o territorial jurisdiction over the place where the alleged offence was com- haviiiK'imûris.
mittcd, and that an objection to the committal on this ground was taken be- diction over
fore the commitment, is no ground for the Court to which the commitment is fln™ where nl-
made quashing it under section 532 of the Criminal Procedure Code, 1882. w^s couuniuwl
Queen-Empress v. Abbi Reddi, I. L. It., 17 Mad., 402 (1894).
57© Supplementary Provisions. [Ch. XLV.
Jurisdiction— The accused was charged under section 498 of the Penal Code with tiav-
IJri*2|"5r ing enticed away a married woman, and under section 497 with having com-
two*oneiioes,1 mitted adultery. The woman, alleged to have been enticed away, resided
one of which in Bombay, but the alleged adultery took place at Khandala, outside the juris-
uitulde jiiriId i"- Miction. At the enquiry before the Magistrate in Bombay, objection was taken
tion-oiiectioii to his jurisdiction with regard to the charge of adultery. The Magistrate,
Mkeii before however, overruled the objection and committed the accused for trial. At the
Siibw'i'i'cnt oh- trial an application was made, on behalf of the accused, under section 532 of
jeotion token nt the- Criminal Procedure Code, 1882, that the commitment should be quashed
the Sessions. ftnfI ft frw\t enquiry directed on the ground that an objection had been taken
to the Magistrate's jurisdiction. Held, refusing the application that the com
mitment being an order under section 531 of the Code, the commitment
should not be puashed unless a failure of justice would be caused by proceed
ing with the trial. The Queen-Empress v. James Ingle, I. L. K., 16 Bom.,
200 (1891).
Waving war Accused was convicted by the Court of Sessions under section 121, Penal
kîun.st the Code, of the offence of waging war against the Queen. The proceedings 1h?-
Hi'int'hy °IU" f,)re t'ie Magistrate commenced upon a police report, and not upon a complaint.
Government. Held, that the Magistrate and the Sessions Court had both exceeded their
jurisdiction in taking cognizance of the offence without a complaint authorised
in the manner prescribed by section 190, Criminal Procedure Code, 1882. After
commitment, but before trial, the Local Government by letter accorded sanc
tion for the prosecution. Held, that this letter was not a complaint, and that
the absence of a complaint was a fatal defect not cured by section 537 of the
Code. Held, further, that section 532 of the Code was not applicable to a
commitment by a Magistrate duly empowered to commit. It applies only to
cases where the Magistrate or other authority who has assumed to commit has
not been duly invested with the powers under which he assumes to make the
commitment, that is, when the defect is one personal to the committing officer
and not a defect in his proceedings. Shamal Khan v. The Empress, Punj.
Rec, 1890, p. 33.
Trial in a wrong The order of a Magistrate committing a case to the Court of Session is
Session* Divi- an order of a Criminal Court within the meaning of section 531 of the Code
?ilon'^J"ris'li," of Criminal Procedure, 1882. If such an order, contrary to the requirements
of section 177, directs the commitment to be made to a Court of Session which
has no territorial jurisdiction, it is not to be set aside unless it appears that the
eiTor occasioned a failure of justice. Queen-Empress v. Thaku, I. L. R., 8
Bom., 312 (18841.
Irregular com- Section 33 of the Code of Criminal Procedure, 1872, contemplates the
mitment - Vlace contingency of a case which has been enquired into at the proper place, as
trinl.1"1""' indicated by section 63 of that Code, being committed to the proper Court of
Session by a particular Magistrate not duly empowered by law to make such
commitment ; and not of a case which has been enquired into in a district in
which it was not committed, being committed to the proper Court of Session
as indicated by that section by a particular Magistrate duly empowered by
law to make such a commitment. Consequently, where a Magistrate enquires
into and commits for trial an offence which has not been committed in his
district, and the Court of Session for that district accepts such commitment
because the prisoner has not been prejudiced thereby, and tries him for such
offence, the proceedings in such case are illegal ab initio. Empress »f India
v. Jagan Nath, I. L. R., 3 AH., 259 (1880).
wUh"COrovitkHCs 533. (1) If any Court before which a confession or other state-
ot'swt?onV!640or rnent of an accused person recorded or purporting to be recorded
**' under section 164 or section 864 is tendered or has been received
in evidence, finds that any of the provisions of either of such
S. 533.1 Supplementary Provisions. 57*
sections liave not been complied with by the Magistrate recording
the statement, it shall take evidence that such person duly made
the statement recorded; and, notwithstanding anything contained
in the Indian Evidence Act, * 1872, section 91, such statement
shall be admitted, if the error has not injured the accused as to
his defence on the merits.
(2) The provisions of this section apply to Courts of Appeal,
Reference and Revision.
The sections comprised in Chapter XIV of the Criminal Procedure Code, Evidence—Con-
1882, (except section 155) do not apply to the police in the presidency towns, ^fit'of-iHs'om'i1
and consequently a statement or confession made to a Presidency Magistrate ™n!ie°he,fore>eii'
does not come within section 1(!4, and the procedure prescribed in regard to quiry—Stute-
the recording of statements or confessions by that section and (by reference) |"Jjd^?iVYho°',<*r
section 304 does not apply to statements and confessions recorded by a Presi- poune of or
doncy Magistrate before the commencement of the trial. But such statement a"c'r enquiry,
or confession, though not taken under section 104, is admissible in evidence
against the prisoner. During an enquiry before a Presidency Magistrate after
the evidence for the prosecution was taken, the Magistrate examined the ac
cused uniler sections 209 and 342 of the Criminal Procedure Code, 1882. The
accused was examined in Marnthi, but the questions and answers were recorded
in English. The Magistrate deposed at the trial that it was the invariable
practice in his Court to take down depositions in English, and that he could
not himself have accurately recorded in Marathi, and that each question and
answer when recorded was interpreted to the accused in Marathi, and that the
accused then made his mark at the end of the recorded statement. He further
stated that there were at hand native subordinate officials of his Court who
could have recorded the statement in Marathi, but that he himself had not
sufficient knowledge of Marathi as to be able to read what was written by such
a subordinate, or to satisfactorily check or test the correctness with which it
represented the statement made by the accused. Held that, assuming that it was
practicable to record the statement in Marathi, and that consequently it was
irregular, with reference to section 304 of the Code, to record it in English,
the statement was nevertheless admissible in evidence under section 533, the
irregularity not having injured the accused as to his defence on the merits.
Queen-Empress v. Vitram Babuji, I. L. R., 21 Bom., 495 (189C).
Where a confession given in Hindustani was taken before a Subdivisional Defec' ^"(^jjjj*
Magistrate, and was recorded by the Court officer in Bengali, that being the jfÛot reooniu
language of the Court, and where it appeared that the Magistrate himself cd in language
was a Mahomedan and it was contended that he must be taken to have been jr'jv^n'^ndmis-
able to record the confession in the language in w hic h it was given, there nihility of.
being no evidence to the contrary, held, in the absence of such evidence, the
Court should presume that the proceedings of the Subdivisional Magistrate
were conducted in accordance with law and that in the absence of anything
to show that it was practicable for the officers of his Court to record the
statement in Urdu, it could fairly be held that the Sultflivisional Magistrate
found that was impracticable, and adopted the alternative allowed by law of
having the confession recorded in the Court language. Lalchand v. Queen-
Empress, I. L. R., 18 Cal., 549 (1891).
An accused, when in custody, made a confession to a Deputy Magistrate, aVcuScd—IWtvt
in the presence of a sub-inspector, and during an investigation being held in confession—
into a case of murder, under the provisions of Chapter XIV of the Criminal ÎJ)l^j{>!1n"ot
Procedure Code. 1H82. The confession was recorded by the Deputy Magis- language in
trate in English,
B ' though 6 made in Hindi,' which the Deputy r J Magistrate
a which it is
given, admis-
aibility of, in
• No. I of 1872. evidence.
perfectly well understood and could write. It purported to have been recorded
under the provisions of section 104, and was in reply to one question which
was 8et out. The record bore the signatures of the accused and of the
Deputy Magistrate, as well as the certificate as required by the section. It
occupied about five pages of foolscap. At the trial the Sessions Judge
excluded this confession on the ground that, not having been recorded in the
language in w hich it was made, and there being no reason why it should not
have been so recorded, the document was inadmissible in evidence. He,
however, called the Deputy Magistrate as a witness and admitted in evidence
his statement as to what the accused told him. This evidence, which occu
pied only a few lines, was to the effect that the accused told him he bad
committed the murder, and on this evidence alone the accused was convicted.
On appeal —held, that the provisions of section 104 read with section 3*54 art
imperative as to the language in which a confession is to be recorded, and
that section 533 does not contemplate or provide for any non-compliance with
the law in this respect, and that, therefore, as it was not impracticable to
record the confession in Hindi, the Sessions Judge was right iu refusing to
admit the document in evidence. Held, further, that the Sessions Judge erred
in admitting the oral evidence of the Deputy Magistrate as to what the
accused told him, as, seeing that he was acting under the provisions of
section 104 of the Criminal Procedure Code, 1882, the confession was matter
which was required by law to be reduced to the form of a document : and
therefore, under section 01 of the Evidence Act, no evidence could be given
in proof of such matter except the document, where, as iu this case, it was in
existence and forthcoming. Held, also, that as the defects in the record
could not be cured under section 533 of the Code, and no secondary evidence
could be given, the accused must be acquitted. Jai>ittni>/an Rni v.
The Quren-Emprw, I. L. K., 17 Cab. 862 (18H0).
\M<vt in con- An accused, in custody at the time, made to a Magistrate in Calcutta, in

funion—Invcsti- the course of a police investigation held in Calcutta, a statement confessing
aenpyVownT1" tnat *>e lla<' murdered his father. The accused spoke and understood
English, and the Magistrate questioned him in English, and was answered
sometimes in English and sometimes in Bengali : whenever the answers were
given in English they were so taken down, when in Bengali they were
written down in English and read over to the accused in that language, who
accepted the English as being the meaning of that which he had stated, and
signed the document in the presence of the Magistrate who affixed the usual
certificate thereto. In taking this confession, the Magistrate purported to
have acted under sections 101 and 304 of the Code of Criminal Procedure,
1882. At the trial, subsequently to the admission of the confession in
evidence under section 80 of the Evi lence Act, the Magistrate was called as
witness and deposed to the ab no facts, with reference to the language iu
which the confession was taken an 1 the mo le in which it was recorde 1 :
held, on a reference to a Full Bench as to whether the confession was in
admissible in evidence by reason of some of the answers having been given
in Bengali but recorded in English, that the provisions of section 104 of the
Code had no application to statements taken in the course of a police inresti-
gation made in the town of Calcutta, and that consequently sections 364 and
533 had uo application. Field, mcfrthelets, that the document was properly
admitted upon the evidence of the Magistrate under the provisions of section
26 of the Evidence Act Semble.—That the provisions of section 164, as
read with section 304, would not be complied with where answers made by
an accused to a Magistrate in one language are taken down in another,
unless it could be shown that it was impracticable to have taken down the
answers in the language in which they were given ; and further, that there
would be grave doubt if such a defect could be cured by section 533. V«mi-
Emprm v. Nilmadhub Hitter, I. L. R., 15 CaL, 595 (1888).
S. 533«] Supplementary trovisions. 573
The Deputy Magistrate of Malabar, purporting to act under the provi- Confession—
tions of the Mapilla Act (Ma lms Act No. XX of 1859), recorded a statement *X$5$trJxZ.
in the nut lire ot a confession made oy V who whs under arrest, on suspicion i-nsuil person
of beiug concerned in a Mapilla outrage. This statement, which was made in Mmcistrate.
Malayaiam, was recorded in English in the form of a narrative and was signed
by the Magistrate only. The same Magistrate shortly afterwards, purporting
to act under the Code of Criminal Procedure, 1882. before any evidence was
recorded against 1', examined him as to this statement which was read over
and translated to him. In answer to questions, 1" admitted that he had made
it voluntarily. This examination was recorded according to the provisions of
section 3U4 of the Code. After other evidence was recorded, 1' retracted
his statement. He was committed to the Sessions, tried and convicted mainly
on his own recorded statement and examination. The Deputy Magistrate was
examined as a witness, and stated that tho statement recorded by him was
made by V and was correctly recorded and was made voluntarily. Ilehl, that
the record of the statement made by V to the Deputy Magistrate was not
admissible in evidence against V. Per Paukkk, J.—The provisions of section
1(54 of the Code are imperative, and section 533 will not render a confession ad
missible where no attempt has been made to conform to the provisions of the
former section. If the confessional statement of I' was recorded by the Magis
trate in his executive capacity, it was not receivable in evidence under section
80 of the Evidence Act. The action of the Magistrate in examining 1' as to
his confessional statement before there was any legal evidence on the record
against him was illegal and, therefore, the record of such examination could
not be used in evidence against I". Inasmuch as the record of the statement of
of V was not admissible, secondary evidence thereof could not be given.
Queen-Empress v. Virwt, I. L. R., It Mad., 224 (1880).
An accused, who was charged with murder, not being found, the witnesses Commitment
were examined under section 327 of the Code of Criminal Procedure, 1872, {Jj^'^Jii''
in his absence. The accused was subsequently arrested and committed on the truce ot aeeus-
strength of the evidence taken in his absence. Before the Sessions Court he im
pleaded not guilty. Held, that the prisoner having been put upon his trial
and having pleaded, the commitment could not be quashed. Held that, if in
the course of a trial, the Sessions Judge should be of opinion that the prose
cution has not laid a proper basis for the reception of evidence in the absence
of the accused, his proper course is to adjourn the trial under section 244 of
the Code, and then, under section 351. summon such witnesses as he may
deem material, Semble.—The mere absence of questions in the record of a
pi isoner's statement do not render it inadmissible. In re Empresn v. Sa<iam-
bnr, 12Cal. L. R., 120 (1882).
Where a Magistrate w ithout jurisdiction commits an accused person to Com iiitiu nl
the Sessions Court, such commitment is void, and no reference to the High ^{[j",' laTU'
Court is necessary to have it set aside. In re Empress v. Alt in Slundle, 11
Cal. L. It., 55 (1882).
If the certificate required by section 122 of the Code ofCriiniu.il Pro- Kviiieiiec-
cedure, 1872. that a confession voluntarily made is not recorded by the 'cr'uS'c'
Magistrate at the time the confession is made, or, at any rate, on the day it
is reduced to writing, the confession is bad, and inadmissible in evidence. To
render the statement of one person jointly tried with auother for the same
offence liable to consideration against that other, it is necessary that it should
amount to a distinct confession of the offence charged. Emprens v. Dagi
Narsu and Govinda Natha, I. L R., 6 Bom., 288 (1882).
Under section 200 of the Code of Criminal Procedure, 1872, a Sessions Bisrlinrgo Or-
Judge has power to direct a subordinate Court to enquire into offences in Sên'Miv0"""'1"
respect of which he considers a commitment to the Sessions Court should be Sessions Judge
made ; but where a person accused of an offence has been discharged under »'te' di.wlmnrc
section 215 of the Code by a Magistrate duly empowered to try the offence, a y M"1!",t'te
Sessions Judge bus no power to order the commitment of the accused without,
at least, giving him an opportunity of showing cause against it. Where, how
ever, such a commitment lias been made and a trial had thereunder, section
283 of the Code is a bar to the reversal of the judgment of the Sessions Court,
unless there has been an actual failure of justice cause 1 by his error. In re
Khamir, lOCal. L. H., 8 (1881).
Confession. When a confession is made to a Magistrate by an accussd person during
an enquiry held previously to the case being taken up by the committing
officer, and by an officer acting merely as a recording officer, it must be
recorded in strict accordance with the provisions of sections 122 and 34(5
of the Code of Criminal Procedure, 1872. If the provisions of these sections
have not been fully complied with by the recording officer, the Court of
Sessions may take evidence that the accused person duly made the statement
recorded ; but a Court of Session is not at liberty to treat a deposition
sent up with the record and made by the recording officer before the commit
ting officer to the effect that the accused person did in fact duly make before
him the statement recorded as evidence of that fact. In such a ca.se the
recording officer must himself be called and examined by the Court of
Session, except in cases in which the presence of the recording officer cannot
be obtained without an amount of delay or expense which, under the circum
stances of the case, the Court of Session considers unreasonable. Nothni
Mistri v. The Emprem, I. L. R., 5 Cal., 958 (1880).
Admissibility When the confession of a prisoner, under section 122 of the Criminal
of secondary Procedure Code, 1872, was not taken in the manner provide 1 by section 31(5,
evidence ot and was, therefore, defective—htld, that the evidence of the recordiug oftk-er.
confession—
Confession not that such confession was actually made, was inadmissible to remedy the
taken in accor defect. Empress v. Maiuioo Tainoolee, I. L. R , 4 Cal., 696 (1879).
dance with law.
Confession - A confession recorded under section 122 of the Code of Criminal
Memoran Procedure, 1872, to be admissible in evidence must not only bear a memoran
dum-Certifi dum that the Magistrate believed it to have been voluntarily made, but also
cate.
a certificate, under section 34(5 of the Code, that it was taken in the Magis
trate's presence and hearing, and contains accurately the whole of the state
ment made by the accused person. No oral evidence can be received tu
prove the fact of the confession, if the confession itself be inadmissible.
Beg. v. Shivya, I. L. R., 1 Bom., 219 (187G).
Omission to ask 534. An omission to ask tiny person whether he is tin En-
question pres ropciin British subject, in it case to which sub-section {2) of sec
cribed by sec
tion 13t (2). tion 454i applies, shall not affect the validity of any proceeding.
Effect of omis 535. (1) No finding or sentenc ) f ronounced or passed shall
sion to prepare be deemed invalid merely on the ground that no charge was
charge.
framed, unless, in the opinion of the Court of appeal or revision,
a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks that a failure of
justice has be3n occasioned by an omissi m to frame a charge, it
shall order that a charge be framed, and that the trial be re-cjin-
menced from the point immediately after the framing of the
charge.
Ouiuwion to A Magistrate tried and acquitted a person accused of an offence without
prepare cliaree- preparing in writing a charge against him. Such omission did not occasion
clmrirc-lt«î'-,i any failure of justice. Held, with reference to section 210 of the Code of
val of prosecu- Criminal Procedure, 1872, Explanation I., that such omission did not invali-
tiou date the order of acquittal of such person, and render such order equivalent to
Ss. 534-536.] Supplementaly Provisions. 575
au order of discharge; and such order was a bar totlio revival of the prosecu
tion of such person for the same offence. Empress of India v. Gurdu, I. L.
B., 3 All., 129 (1880).
536. (/) If an offence triable with the aid of assessors is î,")^ tVi^f.to 1
tried by a jury, the trial shall not 011 that ground only be invalid, with assessors.
{2) If an offence triable by a jury is trie d with the aid of J™'1^^^
assessors, the trial shall not on that ground only b3 invalid, un- triable by jury,
less the objection is taken before the Court records its fiuding.
L and -V were tried by a Sessions Court on charges of dacoity and mur- Jury wrongly
der. The jury returned a verdict of guilty on both charges. The Judge, JjJJjj'J^ "j^^l
contrary to the provisions of section 269 of the Code of Criminal Procedure, Unanimous oni-
1882, treated the jury as assessors in respect of the charge of murder, and, iiionofjury.
convicting L and .1/ of dacoity, acquitted them of murder Hrld, that the
irregular procedure of the Judge could not deprive the verdict of the jury of
its proper legal effect. Queen- Enqn-ess v. Loksamana, I. L. R., 9 Mad., 42
(1885).
A complaint having been laid (on the 20th March 188 i), under section 02 Profession -
of Act III of 1871 (Madras), against 0 for having exercised his profession montrf-1"'"
for more than two months in the official year 1884-85 in a municipality without OITeuce,
paying the tax in respect thereof, the Magistrate dismissed the complaint, on p"oîaioit—
the ground that the prosecution was barred by section 109 of the Act, inas- Limitation,
much as live months had elapsed since the last payment in respect of the tax
became due : Held, that the complaint, if laid within three months from the
close of the official year, or, if 0 ceased to exercise his profession before the
close of the official year, within three months from such date, was not barred
by section 109 of the Act. Ootacamimd MunicqnlHy v. O'Shaughnessy, I. L. 1!.,
9 Mad., 38 (1885).
In a trial by a jury before a Court of Session upon charges sonic of which Trial by jury of
were triable by a jury and some with the aid of assessors, the jury by a majority offences
of four to one returned a verdict of " not guilty" on all the charges, field, that nbluwUUUie'aM
it was not competent to the Judge, who disagreed with the verdict, to treat the of assessors,
trial, so far as it dealt with the latter charges, as a trial with the aid of assessors,
and concurring with the minority to convict and sentence the accused person.
It was the duty of the Judge in such a case to have accepted the verdict as
one of acquittal, and then to have passed orders in accordance with section
203 of the Code of Criminal Procedure, 1872. Id re Bhootnuth Day, 4 Cal.
L. B., 405 (1879).
Per Maclean, J.(Mi rTER, J., dubitatUe). —The trial by a jury of an offence Tri.ilhy jury ol
triable with assessors is not invalid on that ground, but an accused who would "ri/uVeTjui1^
have been entitled to an appeal on the facts, if the case hail been tried with assessors,
assessors, is not debarred from that right merely by the fact that the trial by
jury is not invalid. 'I he Empress v. Mohim Chunder Rat, I. L. 11., 3 Cal.,
'705 (1878).
Where a case to which Government had not extended trial by jury was Trial by Jury
tried by jury, the trial was not considered invalid on that ground ; but the Jjjjjj™ 1,1 'I'P1'-
Judge's charge was treated as his judgment in the case, and the prisoner's ap
peal was heard on the facts The Queen v. Doorga Chum Shuine, 24 \V. K.,
30 (1875).
Where a trial was held with a jury, instead of, as it ought to have been, Jury-Asses-
with assessors, the High Court refuse I, with reference to the provisions of*0"'
section 420, Code of Criminal Procedure, 1801, to reverse the sentence, as it
could dispose of the appeal on the evidence, instead of merely restricting
itself to questions of law. The Queen v. Nor Kuo, 18 W. 11., 59 (1872).
teHwwiien*011" 537. Subject to the provisions hereinbefore contained, no

reversible by finding, sentence or order passed by a Court of competent juris-
ur omission in diction shall be reversed or altered under Chapter XXVII or on
prîin^ther appeal or revision on account—
(a) of any error, omission or irregularity in the complaint,

summons, warrant, charge, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other pro
ceedings under this Code, or
(It) of the want of or any irregularity in any sanction required
by section 195, or any irregularity in proceedings taken under
section 476, or
(c) of the omission to revise any list of jurors or assessors in
accordance with section 321, or
(d) of any misdirection in any charge t> a jury unless such
error, omission, irregularity, want or misdirection has in fact occa
sioned a failure of justice.
Explanation.—In determining whether any error, omission
or irregularity in any proceeding under this Code has occasioned
a failure of justice, the Court shall have regard to the fact whether
theobjection could and should have been raised at an earlier stage
in the proceedings.
Illustration.
A Magistrate being required by law to sign a document, signs it by

initials only. This is purely an irregularity, and does not affect the
validity of the proceeding.
[No new trinl [167 (Evidence Act). The improper admission or rejection of
for improper evidence shall not be ground of itself for a new trial or reversal of any
admission or
rejection of decision in any case, if it shall appear to the Court before which such
evidence*] objection is raised that, independently of the evidence objected to and
admitted, there was sufficient evidence to justify the decision, or that, if
the rejected evidence had been received, it ought not to have varied the
decision.]
Complaint, Where an original uonipluin! in dismissed under section 203 of the Crimi
dismissal of— nal Procedure Code, a fresh complaint on the same facts cannot be entertained
Reviv.il of pro
cecdiiig::—Ap so long as the order of dismissal is not set aside by a competent authority.
plication of Section 537 of the Criminal Procedure Code, 1SK2, is not intended to apply to
Heetion 5U7 of a case which has not been dually disposed of. NilraUm S>:n v. Jmjesh C/hiikIiii
the Criminal Bhuttaeharjee, I. L. K., '23 Cat., 983 (18'Jli).
l'roceiinre
Code.
Pronouncing In this ease, after the evidence was adduced on both sides, the Assistant
sentence before Magistrate fixed a day for hearing argument and passing judgment. On that
writiiurjudg day argument was heard, and the case adjourned to another day for judgment,
ment— Irregu
larity. when the Magistrate pronounced sentence, though he had not written his
judgment. The judgment was, however, written on the evening of the same
day. Held, the judgment of the Assistaut Magistrate was not in accordance
S- 537-] Supplementary Provisions. 577
with the provisions of sections 366 and 367 of the Criminal Procedure Code,
1882. In the circumstances of tiie case the omission of the Magistrate in re
cording a judgment before pronouncing his sentence was an omission or irregu
larity which fell within the purview of section 537 of the Code. The sentence
itself by reason of this irregularity was not an illegal sentence so as to render
the trial nugatory. Tiluk Chandar Sarkar v. Baisagomoff, I. L. R., 23 Cal.,
502 (1896).
A District Magistrate cannot transfer to any Magistrate cases under sec- Cnttle-Trespas*
Hon 20 of the Cattle-Trespass Act fl of 1871), which are triable only by the ^wof'Si."
two classes of Magistrates specified in that section. An order awarding com- trict Magia-
pensation under section 22 of the Act passed by any other Magistrate is ille- tr»t«totr!,"sfer
i i »i ii »i •• e i- r.i<> i- cqt j! ciim;s to a sub-
gal, and cannot be cured by the provisions of section 529 or section 537 of onlinate MairU-
the Criminal Procedure Code, 1882. Ragliu Singh v. Abdul Wahab, I. L. R., Irite-Oom-
23 Cal., 442 (1896). pet.sal.on.
A Native Sub-Magistrate, who had not been authorised to take down evi- ^"noni'awe*
dence in English, recorded the memorandum of the substance of the evidence
taken under section 355 of the Code of Criminal Procedure, 1882, in that lang
uage. Held, that there was no provision in the Code prohibiting this proce
dure, and that at any rate it was merely an irregularity which would not vitiate
the trial. (,)we,i- Empress v. Gojml Goundan, I. L. R., 19 Mad., 269 (1896).
Where investigations of the police preliminary to trial are directed to a êi-c-st'of'sfaK -
very considerable degree by a Magistrate, such Magistrate is personally inter- istrati!-Inve*ti-
cstcd in the case and is disqualified from trying it by the provisions of section nation* preliini-
555 of the Criminal Pncediue Code, 1882. A disqualifying interest may re- "p^j," "1,7.
suit from a purely official connection with the initiation of criminal proceedings, terested.""
A Magistrate who in consequence of such a personal disqualification, is for
bidden by law to try a particular case, though he may be authorised generally
to try cases of the same class, caunot be said, with respect to that case, to be
a Court of competent jurisdiction, and his orders are not covered by the sav
ing provisions of section 537. Sudhama Upadhya v. Queen- Empress, I. L. R.,
23 Cal., 328 (1895).
The formality of calling upon an accused person to enter on his defence £lll'1l,*ll9el"p(}"
under the provisions of section 289 of the Criminal Procedure Code, 1882, is enter o." hi» do"
not a mere formality, but is an essential part of a criminal trial. Omission fence—Misdircc-
to
/. do* somoccasions . a failure
. of Jjustice,7 and. is. not cured
.. . byi section 537 of , the. V10','..,!"
riuinre oi jus-
Lode, lo allow the jury to pronounce their verdict heroic the accused is tioo
called upon to enter on his defence is a misdirection, though the Judge omits
to charge the jury at all. In such a case, clause (</) of section 423 of the
Code docs not stand in the way of the appellate Court's interfering with the
verdict of the jury. Quetn-Empress v. Imam Alt Khan, 1. L. R., 23 Cal., 252
(1895).
Sanction to prosecute R for offences under sections 193 and 471 of the 8JSJ^J,!J,lltl0,0|iro.
Penal Code committed in the course of a judicial proceeding was granted on ûtioii0co.ii-°
the 5th September, 18113, and the prosecution was commenced before the Mag- inci.ccd more
istrute on the 7th March, 1894, the 4th March being u Sunday, und the 5th and JJ™ *™ '"t""""
fith Court holidays. R was committed to the Sessions. Held, that as section of sanction, the
7 of Act I of 1887 docs not apply to the Code of Criminal Procedure, 1882, P7'^n,eX£
and there is no provision of law by which the period provided by section 195 holiday*,
during which a sanction may remain in force can be extended by reason of the
period expiring during Court holidays, the proceedings of the Magistrate were
without jurisdiction, and the commitment must be quashed. Held, further,
that section 537 of the Code of Criminal Procedure, 1882, was not intended to
override the provisions of section 195, nor can it be said that there has not
been a failure of justice in the prosecution of a person after the period for
which the sanction was in force has expired. Raj Chunder Moznmdar v.
GW Chunder Mozumdur, I. L. R., 22 Cal., 176 (1894).
37
578 Supplementary Provisions. [Ch. XLV
en'"\n<of °nof Where certain accused persons were convicted of rioting, and it appear-
specifying in ea" that the charge did not specify any common object, and that neither the
charge nor find- judgment of the original Court nor that of the Sessions Judge in appeal found
mcnts oMower wn*t was ",e common object which made the assembly of which the prison-
Courta. ers were members an unlawful one : Held, that these defects did not vitiate
the proceedings, there being ample evidence on the record to prove what the
common object of the assembly was and to justify the conviction for the
offene of which the lower Courts had found the accused guilty. Held, fur
ther, that in such a case a rule to show cause why the conviction should not
be quashed under the provisions of section 439 of the Code of Criminal Pro
cedure, 1882, ought not to be granted unless, on the materials which are before
the Court when the ride is granted, it would be prepared to make the rule ab
solute if no cause be shown against it. Has/ra id/ v. Queen- Empre»». I. L.
R., 21 Cal., 827 (1894).
Assessors, state- Where in u trial for murder held with assessors the Court relied on a state
ment of accused iiient made by the deceased, and the evidence necessary to prove such statt-
ed^"he?rPpre- llient wa8not recorded until after the close of the trial and the discharge of
sence. the assessors : Held, that this amounted to a material irregularity which was
not covered by section 537 of the Code of Criminal Procedure, 1882. Queen-
Emprem v. Ram Ltd, I. L. H., 15 All., 136 (1893)
Irregularity pre- Where two cross-cases of rioting and grievous hurt were, committed
judicing trie ac- separately for trial before a Sessions Judge, who, having heard the evi-
courUer-^ha'rges l'enc0 m tue nrs' case, heard the evidence in the second case, examined
of Cross-cases some of the accused iu the one case as witness for the prosecution in the
tried together- other and rice rem), and subsequently heard the arguments in both the
ense Considered cases together, and the opinions of the assessors (who were the same in both
in the other -II- the cases) were taken at one time, and both, the cases were dealt with in one
between'Fi,two j»'lgment : Held that this mode of trial, although irregular, did not prejudice
parties not the accused in their defence, and that under >uch circumstances a re-trial
'transaction." waa not made necessary by reason of such irregularity. Nor did the examina
tion of the accused who were on their trial in one case as wit nesses for the pro
secution in the other affect the validity of their conviction. Sent hie.—A tight
between two parties cannot be treated as a "transaction" within the meaning
of section 239 of the Code. On the law as contained in that section, the two
parties cannot regularly be charged in the same trial. The Queen- Empress
v. Chandra Bhuii/a, I. L B., 20 Cal.. 537 (1892).
Re-calling wit- There is under section 257 of the Criminal Procedure Code, 1882, no ab-
nesses for fur- solute right of cross-examination which would enable the accused to recall
infimticmS after llm' cross-examine the witnesses for the prosecution, no matter how eoiu-
charges. pletcly and fully they have already been cross-examined. Where the witnesses
for the prosecution were fully cross-examined and a charge framed against
the accused, and after an adjournment for ten days the witnesses for the de
fence were examined and cross-examined, and on the day on which the judg
ment was to be delivered an application under section 257 of the Code was
made on behalf of the accused asking that process should issue for the wit
nesses for the prosecution to be recalled anil further cross-examined: Held, that
if the Magistrate was of opinion that the application was made with the inten
tion and for the purpose of vexation or delay, or for defeating the ends of jus
tice, he was right in refusing the application. It lies upon the party who think*
himself aggrieved to show that the ends of justice have been in someway
frustrated in consequence of the refusal to recall the witnesses. It is ne
cessary to ho very careful that persons on their trial should not be prejudiced :
but it is also necessary, on the other hand, to see that proceedings in the cri
minal Courts are not hampered in a needlessly carping and litigious spirit, losing
sight of the main purpose of those proceedings, and giving over-attcution
to matter of mere form. Ndkanta Singh v. Tin Queen- Empress, I. L. It., 20
Cal., 469 (1892).
A child, aged iiliout six yean, was called as a witness in a Sessions Couit. Examination «»
The Judge satisfied himself of his intellectual capacity to give evidence, but ^ja^S twder
intentionally omitted to administer an affirmation on the ground that he was years -Inten-
of too tender year to render any attempt to bind his conscience expedient or i^duû'stor''
practically operative. The Judge did not examine the child for the purpose ,(Hrlni,tion.
of eliciting whether he knew it was wrong not to tell the truth, or whether he
knew the difference between right and wrong, but he told him to tell the
truth nnd permitted him to be examined as a witness : Held, that the child
should have been affirmed. Qutrre.—Whether the omission to affirm the child
having beon intentional on the part of the Judge, the case came within the
provisions of Oaths Act, sectiou 13. Queen- Empress v. Viruperumal,l. L. R.,
16 Mad., 105 (1892).
In a criminal trial evidence otherwise admissible is not rendered inadmis- Separate
sible by the fact that it discloses the commission of an offence other than that JftiSSîf* In
in respect of which the trial is being held. An accused person to whom a tho same pro-
tender
, of pardon has been1 made, and who 1 has -iigiven
1 • evidence
1 11 under
u • c .thatu ence.
ceed'mcwlnussi-
Kvid-
.
pardon against persons who were co-accused with him , should not, 11 sucn huity of—
pardon is withdrawn, be put back into the dock and tried as if he had never Pardon, with-
received a tender of pardon, but his trial should be separate from and subse- jJJTolperton
quent to that of the persons co-accused with him. Where four accused were whose pinion
at one ami the same trial tried for offences of murder and robbery committed J}"^0" wilh"
in the course of one transaction and for another robbery committed two or ra
three hours previously and at a place close to the s ene of the robbery and
murder : Held, that the trial of these separate offences together, though an
error or irregularity within the meaning of section 537 of the Code of Cri
minal Procedure, 1882, would not necessarily render the whole trial void.
Queen- Empress v. Mulua, I. L. R., 14 All., 502 (1892).
At a trial on a charge of murder one of the witnesses for the prosocution Omission to ad-
was » girl about ten years old. The Sessions Judge allowed her to be ex- oath or afflnoa-
ainiucd without administering any oath or affirmation, as it was found that tion -Evidence
she did not understand the nature of either. The prisoner's counsel objected comwtewTof
to the admissibility of her statements, but the objection was overruled, and the peraonsof
prisoner was convicted of murder and sentenced to death. Held, pee Jakdine, tender years,
j., that the girl's evidence was admissible. The " omission " referred to in
section 13 of the Indian Oaths Act (X of 18<3) includes any kind of omission
and is not restricted to accidental or negligent omissions. Queen- Emprexs v.
Shacu, I. L. R., 16 Bom., 359 (1891).
Where a Magistrate was found to have taken cognizance of an offence Magistrate
under clause (,) of section 191 of the Code of Criminal Procedure, 1882, held, j££aufi
that he had no power, on an application being made under the last clause of oflencc on his
the section abovenamed, to refuse to transfer the case Held, also, that where a kno'î^'li'1
Magistrate, before evidence taken for the prosecution, put questions to the Hfeht of nc-
occused of the nature of a cross-examination, such procedure was illegal, as it c.used t0 lmfi
could not be said that the questions were put for the purpose of enabling the fer^-i'ower*
accused to explain any circumstances appearing against him in the evidence, of Magistrate
within the meaning of sc-tion 342 of the Code. Queen-Empress v. R. Haw- J« quest ion tho
thortu, I. L. R,, 13 All., 345 (1891). the accused.
Case in which, upon review, a certificate having been granted by the oorro^ratlon-
Advocate-Uencral tinder section 2(j of the Letters Patent, a conviction was Improper recep-
quashed on the ground of improper reception of evidence and misdirection. ^°".o' ev idem-o
The accused being upon bis trial at the Sessions for murder, the two principal utte7sTatc"r
witnesses for the prosecution were G and J/, to whom pardons were tendered of 18«5. section
by the committing Magistrate under section 337 of the Criminal Procedure 46—Keview-
Code, 1882, and who had accepted the pardons. The Judge read to the jury
statements (which had not been admitted in evidence) by G and M purport
ing to have been taken under section 364. Held, that the improper reception
58o Supplementary Provisions. [Ch. XLV.
of such evidence constituted a decision erroneous in point of law calculated
to prejudice the prisoner. The Judge further charged the jury that they
were not to convict upon the evidence of G if satisfied that he was an
accomplice and uncorroborated, but coupled the direction with a strong expres
sion of opinion that G was not an accomplice. Held, that this constituted a
misdirection in fact, though not in form, calculated seriously to prejudice
the prisoner's case. The Queen-Empress v. O'Hara. I. L. I!., 17 C'al., o'42
(1890).
Joinder of If, in any case, cither the accused arc likely to be bewildered in their de-
rc"cominittei'l1" 'i nc<- '\V having to meet many 'disconnected charges, or the prospect of a
by different ac- fair trial is likely to he endangered by the production of a mass of evidence
di'fteren?"''*' ""''rected 'e many different matters and tending by its mere accumulation to
sons nt'duTer- induce an undue suspicion against the accused, then the propriety of eombin-
cnttiines—Joint ing the charges may well be questioned. A committing Magistrate is bound
trml-CharKe. „nt|er soc.tjons 222 and 223 of the Code of Criminal Procedure. 1882, to insert
in the heads of charge sufficient particulars of time, place, person, and circum
stance, us will give each of the prisoners notice of the matter with which he is
charged. The four accused, who were members of the Dharwar Police Force,
were charged with ill-treating the complainant Hauma, his wife Rakhma, and
his son-in-law Yellia during the course of a police investigation into a case of
theft. They were committed for trial for the following offences:—(1) All the
accused for an offence under section 330, Penal Code, the charge, covering
several acts of violence alleged to have been committed against Hanma during
his confinement, which formed the subject of the second head of the charge.
(2) All the accused for an office under section 348, Penal Code, committed
against Hanma between the 5th and the 18th January, 1889. (3) Accused
Nos. 1 and 3 for an offence under section 348, Penal Code, committed against
Rakhma on the 15th January, 1889. (4) Accused No. 3 for an offence under
section 330, Penal Code, committed against liakhma on the 14th January,
1889. (5) All the accused for an offence under section 330, Penal Code,
committed against Yellia between the loth and 23rd January, 1889. (l>) All
the accused for an offence under section H48 committed against Yellia during
the same period. (7) Accused Nos. 1, 2 and 3 for an offence under section
34G, Penal Code, committed against Yellia between 8th February and 9th
March, 1889. The accused were committed to the Court of Session in two
separate cases. The Sessions Judge tried both cases together under sections
235 and 239 of the Code of Criminal Procedure, 1882, as the same four per
sons were accused in both cases and " were charged with different offence*
committed in what was virtually one transaction, namely, a police inves
tigation into an alleged theft." The accused were convicted of the offences
charged, and sentenced to various terms of imprisonment. Held, reversing the
convictions and sentences, that the combinations of the two cases necessarily
prejudiced the accused by making it possible for the prosecution to bring
forward a mass of evidence at the trial relating to many matters, some only
remotely connected with relevant questions which must to some extent have
had the effect of embarrassing and confusing die accused. Held, also, that
all the several acts of violence alleged to have been committed against Hanma
during his illegal confinement could be rightly regarded as constitnting a
single transaction. But the act of violence said to have been committed
against Rakhma at a different place could not be regarded as a part of that
transaction. Nor was the wrongful confinement of Rakhma by accused
Nos. 1 and 3 on the 15th January a part of the transaction constituted by the
hurt caused to her by accused No. 3 on the previous day. In the same way
all acts of hurt caused to Yellia during his first period of wrongful confine
ment would with the continenmt form a part of the same transaction i but the
second period of confinement, which is said to have commenced some time
after the termination of the first period of confinement, would be a separate
transaction. Queen-Empress v. Fakhapa, I. L. R., 15 Bom., 491 (1890).
S. 537.1 Supplementary Frovisions.
A woman, l>eing n member of the dancing-girl caste, obtained possession obtaining a

of a minor girl, and employed her for the purpose of prostitution ; she subso- "(^^'"ItjIuic
quently obtained in adoption another minor girl fr0111 her parents, who be- mgtKirl casta
longed to the same caste. She and the parents of the second girl were —Adoption—
charged together under sections 372 and 373 of the Penal Code. The charges ^°j,"l°im-
related to both girls : Held (I) that the two charges should not have been material irre-
trie.l together, hut the irregularity committed in so trying them had caused ifularity.
no failure of justice ; (2) that sections 372 and 373 of the Penal Code may be
applicable in a case where the minor concerned is a member of the dancing-
girl caste. Per MUTTDSAMJ AvVAB, J.—It would be no offence if the intention
was that the girl should be brought up as a daughter, and that when she attains
her age, she should be allowed to select either to marry or follow the profes
sion of her prostitute mother. Queen-Empress v. Rumtimui, I. L. 1!., 12 Mad.,
273 (188!)).
The accused, who were classers employed in the Revenue Survey Depart- Evidence of an
ment, were charged, under section 161 of the Penal Code, with taking bribes Necessity* ot
from the rayats of certain villages. The only evidence against the accused corroboration—
was that of persons who had either subscribed to the bribes or collected sub- tomJul8,^'" *"
scription or paid the money to the accused. They stated that they had crime-Presence
offered the bribes because the classers had threatened to raise the assessment, as evidence of
cut down the hedges, and erect new boundary-marks. As regards this evi- ^q™111011 inteu'
deuce, the trying Magistrate remarked that, even if all the witnesses for the
prosecution were treated as accomplices, it was open to him to convict on their
uncorroborated testimony, as " there was inherent truth in their statements,
and circumstances existed which negatived the presumption of a conspiracy,
and evidenced signs of truthfulness." The Magistrate was also of opinion
that there was a distinction between accomplices who volunteered to assist in
the receipt of illegal gratifications and those who assisted under compulsion.
In the opinion of the Magistrate, the witnesses in the present case belonged
to the latter class, and there was no reason to disbelieve their evidence. He,
therefore, convicted the accused under section 161 of the Penal Code, and
sentenced them to rigorous imprisonment and tine. Held (Scott, J., dinncnt-
iny), that the convictions were illegal, there being no evidence to corroborate
the witnesses for the prosecution, all of whom were accomplices. Held, alBO
(Si'ott, J., dissenting), that there was such error in the consideration by the
.Magistrate of the evidence as to prejudice the accused, and such a failure of
justice as to justify the Court in revision in setting aside the convictions.
Per curium :—The limits of the application of the doctrine of necessity as an
excuse for an act otherwise criminal are those prescribed in section 94 of
the Penal Code. Therefore witnesses who in order to avoid pecuniary in
jury or personal molestation had offered or given bribes to a public servant
were abettors of the offence of taking an illegal gratification, and their evi
dence should be treated as that of accomplices. By the law both of India and
Kngland the evidence of an accomplice is admissible, and a conviction is not
illegal because it proceeds upon the uncorroborated testimony of an accom
plice (section 133 of the Evidence Act I of 1872). But the presumption that
an accomplice is unworthy of credit, unless corroborated in material parti
culars, has become a rule of practice of almost universal application. Per
Scott, J.—There may be, however, cases of an exceptional character in which
the accomplice-evidence alone convinces a Judge, and if he acts on that con
viction, with the character of the witnesses clearly present in his mind, a Re-
visional Court ought not to interfere in the absence of other circumstances
showing a want of judicial discretion. Per Jakdine, J. —The mere circum
stance of a person being present on a lawful occasion does not raise a presump
tion of that person's complicity in an offence then committed so as to make
section 34 of the Penal Code applicable. Where the Magistrate on that
ground did make that presumption against an accused person, and applied the
provisions of section 34, he committed an error in law, and the High Court
as a Court of Revision, might acquit the accused. Queen-Empress v. Magnn

Lai ami Moti Lid, I. L. R., 14 Bora., 115 (1889).
Contempt of Tin procedure laid down in section 480 of the Criminal Procedure
Court-Proce- Code, 1882, should be strictly followed. The provisions of the section should
' "ro be applied then and there, ut any rate before its rising, by the Court,
in whose view or presence a contempt has been committed which it
considers should be dealt with under section 480. Where a Magistrate,
in whose presence contempt was committed, took cognizance of the offence
immediately, but in order to give the accused an opportunity of showing
cause, postponed his final order for some days, held, that such action, though
it might be irregular, was not illegal, and, as the accused had not been in
any way prejudiced, was covered by section 537 of the Criminal Procedure
Code. Held, also that, under the circumstances it was doubtful whether
there was any necessity for the Magistrate to postpone the linal order until
the accused had had an opportunity of showing cause ag.iiust it, and that
he should have directed the detention of the accused, and dealt with the
matter at once or before his rising. Queen- Empress v. Paimbar Biikhxh,
I. L. R., 11 All., 361 (188'.i).
Taking coftnii- A revenue-officer sent a i/adast to a third class Magistrate, charging a
itnceof ease on certain person with having disobeyed a summons issued by the revenue
"*niPfromS officer. The third class Magistrate thereupon tried and convicted the accused
a revenue- under section 174 of the Penal Code. The District Magistrate referrred
officer, ami the case on the ground that the conviction was bad under section 530 of
Rfenaed'wiih- tne Code of Criminal Procedure, 1882. Held, that as the yadast amounted
out examining to a complaint within the meaning of section (4), although the complainant
complainant. was not examined on oath as required by section 200, the conviction was
not illegal. Queen-Empress v. Monti, I. L. R., 11 Mad., 443 (1888).
Arrest of thief— ^° suPPor* a conviction under section 225 of the Penal Code, it is not
Rescue from necessary that the custody from which the offender is rescued should be
custody of that of a policeman : it is enough that the custody is one which is author-
priva e person jse(j jaw. y/g^ therefore, that rescue from the custody of a private
person who had arrested a thief in the act of stealing was an offence. A
Magistrate tried A for theft and B aud C for rescuing A from lawful
custody and convicted A, B, and C in one trial. -4 appealed, and B and C
appealed separately. No objection was taken in the petitions of appeal to the
procedure of the Magistrate : Held, on revision, that the convictions might
stand. Queen-Empress v. Kutti, I. L. R., 11 Mad., 441 (1888).
Competency of The competency of a person to testify as a witness is a condition
tender* years— precedent to the administration to him of an oath or affirmation, and is
j'ld'iciaf oath or a question distinct from that of his credibility when he has been sworn or has
affirmation— ufKriued In determining the question of competency, the Court under
evidence on section 118 of the Evidence Act has not to enter into enquiries as to the
oaili or attirma- witness's religious belief, or as to his knowledge of the consequences, of
tio" falsehood in this world or the next. It has to ascertain, in the best way
it can, whether, from the extent of his intellectual capacity and understand
ing, he is able to give a rational account of what he has seen or heard or
done on a particular occasion. If a person of tender years or of very
advanced age can satisfy these requirements, his competency as a witness
is established. Having regard to the language of the Oaths Act (X of 1873).
a Court has no option, when once it has elected to take the statements of
a person as evidence, but to administer to such person either an oath or
affirmation us the case may require. In a trial for murder before the
Court of Sessions, one of the witnesses was a boy of twelve years of age,
and, in answer to questions put by the Sessions Judge, he said that he wor
shipped Debi and understood the difference between truth and falsehood, that
he did not know what would be the consequences here or hereafter of telling
lies, but that he would tell tin* truth. The Sessions Judge proceeded to
record the boy's statement, but without administering to him any oath or
affirmation. Held, that there was nothing in the law to sanction this pro
cedure on the part of the Judge. The High Court required the attendance
of the boy and of the accused, and, having satisfied itself of the com
petency of the former to depose as a witness, 'examined him as to his account
of what had occurred. (Jii-i-ii- lyinirr-is v. Lai Stthai, I. L. It., 11 All., 1M3
(1888).
Section Oof the Oaths Act (X of 1873) imperatively requires that no person Competency of
shall testify as a witne-H except on oath or affirmation ; and notwithstanding Serêar" n"
section 13 of the same Act, the evidence of a child of eight or nine years of Judicial oath
age is inadmissible if it has been advisedly recorded without any oath or omuionto" ~
affirmation. The nature of judicial oaths and affirmations and the history of take evidence
Indian legislation on the subject discussel. Queen- Empress v. Marti, I. L. on oath or afflr-
R., 10 AIL, 207 (1888). ,,,at,on'
Held, that the absence of the certificate referred to in section 188, Code ^t?,""e,°f
of Criminal Procedure, 1882, is, when relied upon for the first time after eon- (C(urjr'edHt,y set-
viction, not a fatal defect, but an irregularity which may be cured under tion it>8—Imina-
section 537 of the Code. Shah>nir Khan v. The Empress, Van}. Ree.,1888, 'rregu'
p. 85.
Where a deposition in the shape of a complaint is made orally or in writ- "Examining"—
ing, and is sworn to, the requirements of section 203 of the Criminal Proce- ^^J^"tte»ted"
dure Code, 18H2, in regard to the examination of the complainant, are suffi- iSycomplainant
ciently satisfied, field, therefore, where a Magistrate dismissed a complaint on oath—Irre-
of criminal breach of trust without examining the complainant on oath, but " n
after the complainant had sworn to the truth of the matters alleged in the
complaint, that the provisions of section 203 had been sufficiently com
plied with, and, if not, that the irregularity was covered by the terms of section
537. Held, also, that, inasmuch as the complaint only amounted to a state
ment that the accused had, in consequence of certain arrangements made with
the complainant's father, received certain moneys and had refused to render
accounts, but contained 110 allegation that he had in fac t realized and dis
honestly misappropriated any particular sum, and obviously was made for the
purpose of forcing him to render accounts, the Magistrate was right in dis
missing it, since the facts alleged did not constitute criminal breach of trust.
Queen- Empress v. Murphy, I L. I!., '.I All., OGG (1887).
At the trial of a party of Hindus for rioting, the Magistrate, instead of Evidence given
examining the witnesses for the prosecution, caused to be produced copies of at previous trial
the examination-in-chief of the same witnesses which had been recorded ut n^fnntioa-in-1""
a previous trial of a party of Muhammadans who were opposed to the Hindus chief,
in the same riot. These copies were read out to the witnesses, who were then
cross-examined by the prisoners, and no objection to this procedure was taken
on the prisoner's behalf. The accused were convicted. Held that, although
the procedure adopted by the Magistrate was irregular, the irregularity was
cured by the provisions of section 537 of the Criminal Procedure Code,
1882, and of section 107 of the Evidence Act (I of 1872), as it was not shown
that there had been any failure of justice or that the accused had been sub
stantially prejudiced, and as the matters elicited in cross-examination were
sufficient to sustain the conviction. Queen- Empress v. NanI Ram. I. L. B..
9 All., 609 (1887).
Five persons were charged with having committed the offence of rioting inûiarit;*.,—
on the 5th December ; four out of those persons, and one F , were charged Separate char-
with having commited the offence of criminal trespass on the 9th Decern- K68 'or diitinot
ber. These two cases were taken up and tried together in one trial, and were 0<renc**-
584 Supplementary Frovisions. [Ch. XLV.
decided by one judgment. Held, that the trial was illegal, and the defect
was not cured by section 537 of the Code of Criminal Procedure, 1882.
Queen-EmprtM v. Chandi Singh, I. L. B., 14 Cal., 395 (1886).
Irregularity An accused was charged with criminal breach of trust as a public servant
faiUire"'!)* * reBPec' °f t',ree separate sums of money deposited in the Savings Bank
jiutice. under three separate accounts. The third of these charges related to the misap
propriation of Rs. 195 composed of two separate sums of Its. 151) and Rg. 45.
alleged to have been misappropriated on the 10th and 25th November respec
tively. These sums the accused in his statement at the trial stated be had paid
over on those datesto the depositor and produced an account-book showing en
tries of such payments on those dates. This statement was proved to be untrue
and the accused was convicted. On an application to quash the conviction on
the ground that the trial had been held in contravention of section 234 of the
Code of Criminal Procedure, 1882 : Held, that the entries in the account-
books did not clearly show that the misappropriation of the sum of Rs. 195
took place on two dates, cr consisted of two transactions, the entries having
been made for the purpose of concealing the criminal breach of trust ; and
that under the circumstances the criminal breach of trust with regard to the
Rs. 195 was really one offence and could be included in one charge SonUe
(per Pkthebam, C. J.)— That if a man were tried for four specific offences of
the same kind at one trial, such a procedure would not be merely an irregularity
which could be cured by section 537 of the Code, but a defect in the trial
which would render the whole trial inoperative, unless possibly it could be
cured by some subsequent proceeding by striking out some portion of t lie
charge. lure Luchmimrain,!. L. R., 14 Cal., 128(1880).
Summary trial *n a case w'lere tne accused was convicted of theft and sentenced to six
—Conviction in months' rigorous imprisonment, the notes of the evidence taken by the Pre
lum appealable sidency Magistrate did not afford sufficient materials upon which the
* ' prisoner could be legally convicted, and the Magistrate had omitted to record
his reasons for the conviction under section 370, clause (;') of the Code of
Criminal Procedure, 1882. Held by the High Court as a Court of Revision
that the conviction and sentence must be set aside, notwithstanding the
provisions of section 437 of the Code. Yaeoob v. Adamsoii 1. L. l! 13
Cal., 272 (188C).
«... . At a trial before a Sessions Court, the attorney who appeared for the
witnamea— prisoner suggested to the Court that, to expedite the trial, certain depositions
Irregularity. 0f witnesses for the prosecution, taken before the Magistrate, should lie
read, and that he should be allowed to cross-examine the witnesses thereupon :
to this course the Government Prosecutor and the Court consented. Jlrltl,
that this procedure was illegal, but that, inasmuch as it had not occasioned a
failure of justice, a new trial should not be granted. Subba v. The Queen-
Empress, I. L. R., 9 Mad., 83 (1885).
. ( . The accused was charged, in the alternative, by the trying Magistrate as
charv"-Conlra- follows :—" I, W. W. Drew, Magistrate, first class, hereby charge you,
dictory state- Ramji Sajabarao, as follows :—That you, on or about the 13th day of October,
inTlternative 1882, at Nandarpada, stated that you had seen Vishnu Vaman and Mahadu
of two difTert-nt Lakshman carrying teak-wood from Goho Forest to Narayan Rainchandra,
twodTi?f'rent r ran£?e forest officer, and on 14th February, 1885, you stated on oath before
•ections of the first class Magistrate at Pen, at the trial of these persons, that you did not
Penal Code. see where they had brought the wood from, and thereby committed an
offence punishable under section 182 or section 193 of the Indian Penal
Code and within my cognizance ; and I hereby direct that you, liamji
Sajabarao, be tried by the said Court on the same charge." At the trial the
accused asserted the truth of the former of these two statements, and denied
having made the other. The Magistrate was unable to find which of them
S. 537-1 Supplementary Provisions. 585
was false, and convicted the accused, in the alternative, either under section
182 or section 193 of the Penal Code. Held, that the charge was bad in law,
being an alternative charge inform forbidden by section 233 of the Code of
Criminal Procedure, 1882, which directs that, for every distinct offence of
which any person is charged, there shall be a separate charge. Nor could
the accused be tried upon a charge framed in the alternative as in the form
Kiven in Schedule V—XXVIII (4) of the Code. For, upon the facts alleged,
there was no way of charging him with one distinct offence on the ground of
self-contradiction. lie could not successfully be charged under section 193
of the Penal Code on contradictory statements, because ho only made one
deposition, in which there were no discrepancies : and, similarly, ho could not
be charged under section 182 of the Penal Code, for he only once gave in
formation to a public servant. Held, also, that, having regard to sections
225,232, and 537 of the Code, the accused, convicted upon such a charge,
must be held to have been misled in his defence, and his conviction and
sentence reversed. Queen-Empress v. Rumji Sajabaran, I. L. H., 10 Bom.,
124 (1885).
Three persons, who were attacked anil w ounded in an affray, informed Misdirection
the police on the same day that the persons who had attacked them were trm"-mmna
A. 13, and C. Eighteen days afterwards the same complainants gave to the Court's Act of
Magistrate enquiring into the case the names of four other persons, who, they !**<;'• section so
said, with the three persons first accused, formed the attacking party. The Hi^'court.'0
seven accused were tried jointly for the offence before the Additional
Recorder of Rangoon and a jury. In his charge to the jury the Additional
Recorder omitted to call their attention to the fact that four out of the seven
accused had not been mentioned by the prosecutors until after eighteen days
had passed over. The prisoners were convicted Held, that the Additional
Recorder misdirected the jury : that under the circumstances the misdirection
prejudiced the four persons last accuse 1 ; and that the verdict must be set
aside as far as they were concerned. L'Ui Tn v. Queen- Empress, 1. L. R.,
UCal., 10 (1884).
Where four persons were accused of having given false evidence in the False evidence
same proceeding, and the Sessions Judge, w hile professing to try each ac- i" the snme
cused separately, heard the evidence of the witnesses only once, held, that s£?^te" rial
this mode
was substantially trying the Sheikh
four prisoners together, and wasI. an impro-
per of procedure. Ar«//i« v. The Queen- Empress, L. R., 10
Cal., 405 (1884)
The provisions of the Code of Criminal Procedure, 1882, apply to the Jurisdiction -
Court of the Judicial Superintendent of Railways in II. H. the Nizam's Practice -Pro-
Dominh.ns held at Secundcrabad. Where, after a magisterial enquiry a Ku- c^mVnnfpro-0'
ropcan British subject, being a public servant within the meaning of sec- cediire. issi,
tion 197 of the Code, was committed for trial to the High Court of Bombay "J^j^jJ0^0 in
by the Judicial Seperintendent of Railways in rf. 11. the Nizam's Domini- the Court of the
Otis, without any previous sanction having been obtained as required by J««liolal Super-
that section : Held, that the proceedings were irregular and without jurisdic- Runways' in
tion, and that a sanction su1 sequently obtained was of no effect ; but H. H the Ni-
held also, that the provisions of section 632 of the Code applied, and that oM'"^san"t'io'i
the Judge presiding at the Criminal Sessions of the High Court had power, of proceedings
in his discretion, to accept the commitment, and to proceed with the trial of —Nuliscquoiit
the prisoner. Per Sakuent, C. J.—The Court of the Judicial Superintendent effect—irrcitu-0
of Railways in His Highness the Nizam's Dominions is subordinate to the l»r commit-
High Court of Bombay in all criminal matters relating to European British "yHiSlTcoiurt
subjects. Per Baylky, J.—The Court of the Judicial Superintendent of Rail
ways in II. H. the Nizam's Domini jns is not subject to the superintendence
of the High Court of Bombay within the meaning of clause 24 of the Letters
Pateut, 1865 ; and a prisoner committed by the former Court for trial to
5^6 Supplementary Provisions. [Ch. XLV.
the Higli Court cannot lie tried on charges preferred by the Advocate-Gene
ral under that clause. Queen-Empress v. A. Morion and Moorteza Alt,
I. L. R., 9 Bom , 2*8 (1884).
Cliaiye -Mean- ^ was tr'ei' 011 a c'lal'fie (') °f murder, (2) of abetting B to corn-
inn or the word mit the said murder. The jury, having considered their verdict, were asked
• charge "hi by the Clerk of the Crown if they were agreed. The foreman replied
SSareCoil™" tnat they were, and that their verdict was guilty, and when further asked,
.Act X of he said ''guilty of abetment — of abetment generally." On the application of
rlrini'Vit'tri'l coun8e' ôr "ie prosecution, a charge was then added of " abetment of niur-
—Altori..is der committed by some person or persons unknown." The additional charge
chnmo—Sub- was read aloud to the jury, but was not specially explained to tlie prisoner,
(■Imri^-o'uH- nor "as 'ie Cll"e'l uP°n to plead to it Counsel for the prisoner was asked
sion to read by the Judge if he desired to have a new trial on the charge as amended, hat
and explain (le declined. The three charges (;'. e., the two original charges and the ad-
sonCT-Porsoii ditional charge) were then read to the jury, who, after deliberation, returned
committed a verdict of " not guilty " on charges Xos. 1 and 2, and of " guilty " on
'i-harKc^'under cnarge 3, viz., of abetment of murder by a certain person or persons
lection 8S6 ol unknow n. On the application of counsel for the prisoner, the following
Criminal Fro- points were reserved : —(1) whether, under the circumstances, the Court had
MMiniiilr ofthe power to add a new charge ; (2) whether the verdict returned on the new
word " alter" in charge was valid, the prisoner not having been called on to plead to
section it. field (Scott, J., dissentinn) that the Judge was wrong in framing a new
words return charge in addition to tlie original charges. L he error, however, was one ot
of verdict " in form, and not of substance, and under section 537 of the Criminal Procedure
«ectionii7. 18g2) the Court declined to interfere with the conviction. Held, also,
that the power exercised by a Court sitting as a Court to decide questions of
law reserved in criminal cases under section 434 of the Code is the power of
review, and the Court is a Court of Reference and Revision. Held, also,
that, having regard to sections 228, 229, and 230 of the Code, the charge of
abetment of murder by B might have been changed into one of abetment gene
rally. Held, also, that, in any case, the conviction was good under sections 216
and 237 of the Code. It was doubtful whether the evidence would establish
the offence of murder, abetment of murder by B, or abetment of murder by
some one unknown. Even if there had been no charge properly framed, tlie
Judge might, under section 237, have accepted the verdict returned by the
jury, and entered it on the record. The fact that the Judge framed a charge
which, ex hypothesi, was beyond bis authority, and accepted a verdict on that
charge, did not affect the legality of the convictions. Held, that the omis
sion to read and explain the charge to the prisoner did not, under the circum
stances, prejudice the prisoner, and was therefore immaterial. In the Crimi
nal Procedure Code generally the word " charge '* is used as the state
ment of a specilie offence, and not as indicating the entire series of
offences of which a prisoner is accused. There is nothing in the Code to
indicate that the word is to have a different construction in sections 220
and 227 from what it has in other sections. The words "without charge,'
in section 22G of the Code of 1882, will probably apply, not only to a case
in which there is no charge at all, but also to a case in which there is no
charge of such an offence as the Sessions Judge or Clerk of the Crown may
think the prisoner ought to bo tried for. If the word " alter " in section 227
is to be taken to include " addition," as it does in section 226, the addition
permitted must be an addition to some specific charge in the nature of an
alteration, and not the addition of a new charge. The words " return of ver
dict " in section 227 mean the return of the final verdict which the Judge is
bound to record. Where, on the application of counsel for the prisoner, a
question of law has been reserved for the decision of the Court under section
434 of the Code of 1882, the prisoner's counsel has the right to begin. Per
Scott, J. • The test of the admissibility of proposed amendments to a charge
Lis whether such amendment will prejudice the prisoner. The word " charge "
S. 537.] Supplementary Provisions, 587
is used in the Code both as indicating the whole series of counts or heads of
charge, and also as indicating a charge of one specific offence. In section
227 it is used in the former sense. The word " alter " in section 227 must
be taken to be equivalent to the words " add to or otherwise alter," which
are used in section 226, and consequently the addition of a new " head of
charge " is an alteration within the moaning of section 227. Queen-Empress
v. Appa Subhana Afendre, I. L. R., 8 Bom., 200 (1884).
Where a witness was prosecuted for disobedience to a summons without Sanction te pro-
sanction previously obt line I un ler section 193 of the Code of Criminal Pro- sccuto—Onus-
cedure, 1882, the High Court refuse 1 to interfere, there being no evidence 810,1 °'-
that the want of sanction had occasioned a failure of justice. In re Kally
Mohun Mook-rjee v. Empress, 13 Cal. L. It., 117 (1883).
Where three persons, of whom one was a pleader, were tried together and [fj0,ru|11,r j}™1
convicted, under section 181 of the Penal Code, of having made false state- titioniin' A™-
ments on solemn affirmation, about the same matter, in the course of an en- Judicial pro-
quiry into the conduct of the pleader under the provision of the Legal Prac- ^ôn of*
titioners' Act : Held, that the conviction of the pleader was bad, as his state- mvumiI on
inent was improperly taken from him on solemn affirmation. Held also, that "jj]™ln "mri,m-
the trial of the three persons together was a grave error of procedure vitiating
the trial. Held, further, that an enquiry under the Legal Practitioners ' Act
being a judicial proceeding, false statements on solemn affirmation made
by the witnesses therein should be charge 1 and tried separately under section
1113 of the Penal Code. Knlha S-thba L'hetli v. Tit' Quhm, 1. L. It., li Mad.,
262 (1883).
A convicted person appealing is not in the same position before the Appellant
appellate Court as he is before the Court trying him. lie must satisfy the JjJJ",",^ ,o0*'10*
appellate Court that there is sufficient ground for interfering with the order of f(.rence.
conviction ; and if no such ground is shown, it is the duty of the appellate
Court not to interfere. Empress v. Snjiietni Lai, I. L. R., 5 All., 386 (1883).
Per FlEI.I), J.— Under the provisions of section 323 of the Code of Crimi- Insularities in
nal Procedure, 1872, the examination of a medical witness taken and duly J^j^JJJ
attested may be given in evidence in any criminal trial; but in order that such evidence,
evidence may be admissible against any individual accused person, the exa
mination must have been taken in the presence of the accused person. Per
Field, J.—It is the duty of a Judge to give a direction upon the law to the
jury so far as to make them understand the law as bearing upon the fact;
anil if he does not give them an explanation of the law sufficiently compre
hensive to enable them to decide the particular issue, it is a misdirection.
Per Field, J.—Irregularities under section 240 of the Code in the selection of
the jurors, and in the admission of the deposition of a medical witness treat
ed, it not being shown that the prisoners had been thereby prejudiced, as
being objections which ought not to be entertained for the purpose of inter
fering with the verdict, regard being had to the provisions of section 283 of
the Code and section 167 of the Kvidence Act. The Empress v. Jhubboa
Mahton, I. L. R., 8 Cal., 73'J (1882).
The words of section 492 of the Code of Criminal Procedure, 1872, are Form of sum-
directory, and not imperative; and an omission to insert in a summons under JJJ!Jj*n ^''^J
that section the amount of the recognizance and security required will not criminal Proce-
invalidate any subsequent proceedings binding over the parties to keep the dure Code, 1874.
peace. Abasn Beyum v. I'mda Khmmm, I. L. R., 8 Cal., 724 (1882).
Trial of 14 persons together charge 1 with distinct offences (committing Nuisance -Trial
public nuisances) under sections 290 and 2;) 1 of the Penal Code: Held, an 01 14 P*™°n»-
irregularity calculated to prejudice the accused. Conviction quashed. Puli-
sanki Rethli v. The Queen, I. L. R., 5 Mad., 20 (1882).
Vsiwr evidence Wlicro several poisons are licensed of having given false evidence in the
known to be same proceeding, they should be tried separately. A, S, B, D, and P, were
false- Sopnrnte jointly tried; yl, in respect of three receipts for the payments of money, pro
trial.
duced by him in evidence in a judicial proceeding, on three charges of falsely
using as genuine a forged document, and three charges of using evidence
known to be false; S, Ji, D, and P, on charges of giving false evidence in
the same judicial proceeding as to such payments. The Court (Straight, J.)
being unable to say that the accused persons bad not been prejudiced in their
defence by having been improperly tried together, set aside the conviction,
and ordered a fresh trial of each of the accused separately. Empress of
India v. Ananl Ram, I. L. R., 4 All., 293 (1KH2).
Joimlor of Held, where three persons were committed for trial jointly charged with
chunres " having, on or about the 26th September, 1881, or the 18th Octol>er, 1881,
being legally bound upon oath to state the truth, knowingly on those days,
regarding the same subject, made contradictory statements upon oath," and
thereby committed an offence punishable under section 193 of the Penal Code,
and such persons were jointly tried on such charge, that such charge was bad
for being single and joint against the three accused persons, instead of seve
ral and specific in regard to each of them ; that it was further bad because it
did not distinctly and in terms allege which of the statements was false : that,
assuming a committal upon so faulty a charge should be allowed to stand,
the Court of Session should have prepared a fresh charge against each of the
accused persons, specifically setting forth the statement alleged to be false,
and should then have proceeded to try each of them separately ; and that, there
being no evidence that either of the statements made by two of such persons
was false, except that it was contradicted by the other, the charge against
such persons was not sustainable, there being no sufficient evidence that either
of the statements was false. Empress of India v. Niaz Ali, I. L. B., 5 All.,
17 (1882).
Fonceil docu with Where the accused were charged under section 471 of the Penal Code
having, in a suit brought against them by the vendee of their sister to
ment—Charge
to jury—Mis recover possession of certain property acquired by her by right of inheritance
direction. from her father, fraudulently and dishonestly used a forged document as
genuine, knowing or having reason to believe it to be a forged document, it
appeared that the accused were in possession of the property, and that the
document in question purported to be a deed of gift from their father. It
was proved that the endorsement of registration which appeared in the docu
ment was a forgery. In his charge to the jury the Sessions Judge omitted to
deal with the fact of the accused being in possession of the property. He
also directed that the registration-endorsement having been proved to be a
forgery, it was for the accused persons to establish the genuineness of the
document. Held, that it was not sufficient for the jury merely to decide on
-the evidence whether the document was a forgery, and whether the accused
knew it was a forgery when they used it, but it was further necessary for the
jury to decide whether the document hail been use ! fraudulently and dis
honestly. Held, also, that the Sessions Judge in omitting to deal with the
fact of the possession of the accused and in throwing the onus of proving the
g nuineness of the document upon them, had misdirected the jury. Khorshtii
Kazi v. Empress, 8 Cal. L. R., 542 (1881).
•' Situction to A Magistrate should not direct a prosecutor to be put upon his trial under
|irowciite " section 211 of the Penal Code without first giving him an opportunity of
obtaining a judicial enquiry into the charge originally preferred by him.
The sanction to prosecute contemplated in section 468 of the Ciiminal Pro
cedure Code, 1872, is not a direction to prosecute, but is a permission grunted
to a private person to exercise his own unfettered discretion as to whether
ho will take proceedings or not. Giridhari Mondid v. Vchit Jha, I. L. R., 8
Cal., 435 (1881).
S. 537'] Supplementary Provisions. 589
A Sessions Court lias no power, under section 296 of the Criminal Proce- Diwlnrx^ i>y
dure Code, 1882, to direct the commitment of a person discharged by a Deputy Mntfitrate -OM
Magistrate, without first giving such person an opportunity of showing cause mOTtbyaiSrioiis
against such commitment. But under section 2DS, as amended by Act XI of Judge -Ouiuwion
1874, the Court has power to direct the subordinate Court to enquire into any t0("" j>"
~ix
oftences £ winch
tor i-i it considers
. . a commitment
., , , , .he ordered
should , 1 , ....
When,- HCCUJCU to KNOW
cnne asiio-a
however, a trial under such a commitment made by order of a Sessions Judge »u<* ">«"nit-
has been duly held, and no actual failure of justice has been caused by the mel '
error of the Sessions Judge, section 283 of the Co le would be a bar to the
reversal of his judgment, 'flu Enure** v, KhamW, I. L. B., 7 Cal., 662
(1881).
In order to justify a Magistrate in interfering under section 530 of the Onrimrfon of Ma*
Criminal Procedure Code, 1872, it is necessary that he should be satisfied that !£5i5l1>relim>
there exists a dispute concerning land which is likely to induct a breach of the nary nro.eed-
peace—i. there must be a reasonable apprehension that a disturbance of the
pence is likely to occur, rendering it necessary for him to take immediate
steps to prevent it and not merely it is probable a breach of the peace mat/
occur if proceedings under section 530 be not taken. Quasrt.—Whether it is
necessary that a preliminary proceeding should first be recarde 1 to give the
Magistrate jurisdiction ? Diniiur Bildi/idltitr Mihioitro v. Si/antanunl
Dey, I. L. K., 7 Cal., 385 (1881).
J, alleged to have carried on business in Calcutta without having taken Justice of (tie
out a license under Bengal Act IV of 1876, was summoned at the instance Pews—Dinquii-
of the Corporation by B, » servant of the Corporation, and also a Justice of -s'i',',',,]"'"'03'
the Peace. The case was subsequently heard by B, and it was shown that ImusI at In-
notice of the assessment under class ii, schedule 3, hud been duly served on A, 5^5' '• ruiViV-<l' 1>V
and that, though he then denied his liability to take out any license, and n nmnt of tWe
stated that he carried on no business as allege 1, he had not appsale 1 against pro«-aulor -
the assessment under section 71>. It was further shown that the assessment ftî'toTiVa'r-
had been confirmed by the Chairman of the Corporation, but that the amount Finilitjr of
had not been paid. A thereupon ten lore 1 evidence to show that he was not "'"""i""0"'-
liable to take out any license : but B refuse 1 to hear such evidence and con
victing A, sentenced him to pay a fine. On an application, under the above
circumstances, to the High C nrt in ler section 147, Act X of 1875,—h'ld,
that the finality of the decision of the Chairman referred to in section 7'.f has
only reference to the class un ler whi'di a particular person, who is admittedly
bound to take out a license under section 75, should be assessed, and not to the
case where the liability to take out a license at all is denied, this being 11 ques
tion which can only be determined judicially after taking evidence by a com
petent Court in a prosecution under section 77, and that, therefore, the refusal
of B to hear the evidence tendered by .1 on this was illegal. Held, also, that
the proceedings an 1 ultiuute conviction of A wore illegal, inasmuch as B,
being a servunt of the prosecutor, i. the Corporation, had such an interest
as might give him a bias in tic; mitter, an I that consequently he ought not
to have sat as Justice of the Peace, either at the granting or upon the hearing
of the summons. Wood v. Tht Corporation of ths '1 own of Calcutta, I . L R.,
7 Cal , 322 1 1881).
The power given by the Criminal Procedure Code, 1872, ton Magistrate to Pro;oo1ii«r«
pronounce a judgment upon evidence partly recorded by his predecessor and " *lf(;w ,ri"
partly by himself, does not extend to a Sessions Judge. Proceedings void.
Tarada Baladuv. ThiQuten,l. L. K.. 3 Mad., 112 (1881).
.1/ was accused of cheating G on t wo different occasions, and also of Joindor of chnr-
cheating A' on a third occasion. The three offences were committed within flea-Offoncm of
one year of each other ; and M was charged and tried at the same time for ~^|*]g*. Itl'{^
the three offences. Held, that such joinderof charges was irregular, inasmuch rotpect odlitlcr-
as the combination of three offence-- of the same kind, for the purpose of CIlt person*.
7„!?11, fS 0nl>' be' whero 8Uch ,lffences llave been committed in respect
uerind S C 8amC Per80n-anJd. no* '""'erent prosecutors, within the
penodof one year as prov.ded in the Criminal Procedure Code, 1872. Em
presto/ India y. Murari, I. L. B., 4 All., 147 (1881)
Refusal of Ma- Where the Magistrate trying an offence rejected an application by the ac-
nrooat<w?tn«» cused person that a certain person might be examined in his behalf either in
named by accu- Court or by commission without recording his reasons for refusing; to snra-
drf_f'h"' ,ror ,non HuCU person as required by section 362 of the Criminal Procedure Code,
ceedlnfrs" VT°' 1872, held, that the conviction of the accused person must be set aside, and the
case be re-opened by such Magistrate, and the application by the accused for
the examination ot such person be disposed of according to law. In Sat
Narain Singh, I. L. K., 3 All., 3H2 (1881).
Distinct and sc- Members of two opposing parties in a riot were, under two distinct cotnruit-
tricd îmullia^* tuls, sent up for trial before the Sessions Judge and a jury. After the close of
neously by a the case for the prosecution in one of these cases, the Sessions Judge, with
,ury' the consent of the pleaders representing the accused, postponed the taking of
the evidence for the defence, and proceeded to examine the witnesses for the
prosecution in the counter-case before the same jury. The Court then took
the evidence of the witnesses for the defence in the first, and in the counter-
case in the order named, and alter hearing the address of the various pleader*
for the defence, and the reply of the Government Pleader, proceeded to sum
up the facts in both cases to the jury, who returned a verdict in respect of
all the accused. Held, that the procedure resorted to by the Judge was u prac
tical violation of the salutary rule which necessitated the keeping- of trial-
in such cases distinctly separate, and that its adoption having materially pre
judieed the interests of accused, the conviction should be set' aside. Held, fur
ther, that the defect in the procedure could not be cured by the consent of the
pleaders for the defence to the arrangement suggested by the Court. Flottei*
Buksh v. The Empress, I. L. K., 6 Cal., 96 (1880).
Committal tol Upon the single charge of wrongful confinement preferred under section
?^,Urity^~ 342 of the Penal Code before a Joint Magistrate, the prisoners raised a de
Prejudging defence justifying the confinement , on the ground that the persons confined
fence to charge hjid been caught by them under circumstances which led to the belief that they
gewtotu Court, bad committed house-breaking by night with intent to commit theft. En~-
quiry having been made, the Magistrate committed the prisoners, not only for
wrongful confinement, but, disbelieving the defence, for fabricating false evi
dence, and for bringing a false charge. The prisoners were tried by the Ses
sions Judge, and found guilty on all three charges at one and the same time.
Held, that the conviction on the last two charges were illegal, as, by adding
the additional charges, the Magistrate hail really prejudiced the defence to the
first charge. Where the Court, without having first heard the evidence for
the prosecution, examines the witnesses for the defence, he commits an irregu
larity ; but if the prisoners are not materially prejudiced thereby, the convic
tion will not be set aside, hi re Turibullah, 4 Cal. L. R., 338 (1879).
Jurisdiction— A Bench of Magistrates has no power to deal w ith cases coming under
tS.0' seLtiotl 530 of the Criminal Procedure Code, 1872. A Bench may be em
powered under section .00 of the Code " to try such cases or such class of cases
only and within such limits as the Government may direct." The definition of
the term " trial " shows that it refers to trials tor offences, and these do not
come within the miscellaneous matters mentioned in section 530. Sufferud-
din v. Ibrahim, I. L. B., 3 Cal., 754 (1878).
Error or defect Held, where without asking the opinion of the assessors a Court of
In proceedinns. gus8;on acquitted an accused person, after his defence had been heard, that
such omission, although a Sessions irregularity, was not such an error or
S. 537-1 Supplementary Provisions, 591
defect in the proceedings as was, with reference to the provi8ions o£ sections

283 and 300 of the Code of Criminal Procedure, 1872, a ground for revisional
interference. In re Xaraiit Das, I. L. R., 1 All., 610 (1878).
The accused persons were tiicd on 27 charges, comprising the offences of Jo'nt trial ot
theft, abetment of theft, and receiving stolen property in 1872-73; similar ^J!!."^,^,^"'
offences in 1873-74 : similar offences in 1874-75: the giving and receiving of tjjf,, of i'mû'lii-
gratitications to and by public servants in 1874-75; and, finally, the fabrication rity where uc-
aud abetment of fabrication of false evidence in 1876. One of the accused a"^."0' prc'"'
was convicted on two heads of charges and the rest acquitted. The convict
appealed against his conviction and sentence: and the Government appealed
against his acquittal on the other heads as well as against the acquittal of the
rest. Held, that the trial was irregular under section 452 of the Code of Cri
minal Procedure, 1872; and so would be the hearing of the appeal. The High
Court, however, heard the appeal in respect of offences in 1874-75 only, it
appearing that this course did not prejudice the accused persons, who had
been fully and fairly tried for those offences. Reij. v. Ilunmunlu, I. L. 1{.,-1
Bom., 010 (1877).
The jailor of a district jail being accused by one of the jail clerks of Irrcirnlarities-
falsifying his accounts and defrauding the Government, the matter was cu- hf'Sn^ner
quired into by the District Magistrate, and the jailor was, by the Magistrate's tjlsqunlifvini;
order, placed on trial before a Bench of Magistrates, consisting of the Dis- interest of
trict Magistrate himself, A the officiating superintendent of the jail, and three KC'
other Honorary Magistrates. The prisoner and his pleaders were alleged to
have stated before the commencement of the trial on being questioned that
had been framed, the prisoner's counsel objected to the Bench as formed.
The District Magistrate directed the Government Pleader to prosecute, and
the case for the prosecution was closed, two formal charges were drawn up,
namely, that the prisoner had debited Government with the price of more oil
seeds than he actually purchased, and that he had received payment for certain
oil at a higher rate than he credited to Government. The moneys, the receipt
of which were the subject of the lirst charge, were obtained bv the prisoner
on the strength of certain vouchers which he had induced L to sign as correct,
und L had sanctioned the sale at the rates credited to Government. Upon
the prisoner's giving the names of the witnesses he intended to call in his
defence, L was deputed by bis brother Magistrates to examine some of them
who were connected with the jail, in order "to guard against deviation," and
the depositions so taken were placed on the record, "to be used by either party,
though not themselves as evidence." The prisoner was convicted. On ino
tion to quash th? conviction,—held, that /- had a distinct and substantial in
terest which disqualified him from acting as Judge. Held, further, that
although a Magistrate is not disqualified from dealing with a ca e judicially,
merely because in his character of Magistrate it may have been his duty to
initiate the proceedings, yet a Magistrate ought not so to act judicially in a
case where there is no necessity for his doing so, and where he himself dis
covered the offence and initiated the prosecution, and where he is one of the
principal witnesses for the prosecution. Held, further, that the recording the
statements of the prisoner's witnesses was irregular. Criminal proceedings
are bad unless they are conducted in the manner prescribed by law, and if
they are substantially bad, the defect will not be cured by any waiver or
consent of the prisoner. The Queen v. Dholanalh Sen, I. L. It., 2 Cal., 23
(1876).
Where a police-officer reported that there was a probability of a breach Krror in law-
01 the peace arising in consequence of a dispute aliout the possession of some Hirh Court's
land, and the Magistrate endorsed an order on the police-report, culling on the J^"" oI revi"
592 Supplementary Provisions, [Ch. XLV.
court inspec tor to summon the parties, without having- recorded a proceeding,
expressing his satisfaction with the grounds on which n breach of the peace
was apprehended : and it was contended by the party, in whose interests the
order finally passed by the Magistrate was made, that the fact of the passing
of the order embraced the necessary conviction : Held, following- the current
of decisions on the point, that, in order to justify a Magistrate in interfering
with public lights under section 530 of the Code of Criminal Procedure, 1872,
it was necessary, not only that he should be satisfied upon sufficient grounds
that a breach is likely to occur, hut that he should acquire a jurisdiction to
deal with it by lirst recording a proceeding expressing his opinion on the sub
ject : and that the omission to record such a proceeding is not a mere irregu
larity, but a substantial defect lying at the root of the Magistrate's juriedic-
tion. Section 297 of the Code, which gives the High Court power to correct
any material error in any judicial proceeding of u subordinate Court, refers
to errors in law, and not to errors in findings of facts. In re Sheikh Mimgl-i
v. Dunja Narain Nag, 25 W. R., 74 (1876).
iSv-Cmto- ^ conviction based on the testimony of approvers, uncorroborated as to
lioratibn—Con- 'he identity of the accused person, cannot be sustained : and confessions of
teuton of co- co-prisoners, implicating him, cannot be accepted as sufficient corroboration
pntoner. 0f such testimony. Reg. v. Budhu Nanku, 1. L. R., 1 Bom., 475 (1876).
Evidence of a The evidence of a child of immature age—who, the Sessions Judge eonsi-
mre iMKsadmU* dered, understood the questions which were put to her, and who was, therefore,
■ibility of. a competent witness under section 318 of the Evidence Act— taken by the Ses
sions Judge as a simple affirmation, because she was not aware of the responsibi
lity of an oath, was held to he admissible as evidence under section 13 of the
Oaths Act X of 1873. Case of Dwarka Nath Dutt (7 W. B., 15), which
ruled that a Court before which a second trial is hel l 1ms nothing to do with
the evidence given in the former trial except for the purpose of ascertaining
whether the offence in the two trials is the same, followed. A prisoner origi
nally charged with an offence under one section (302) and acquitted of that
charge was committed, the day following that on which she was acquitted,
for trial under another section (307), without any witnesses being examined
on the charge under section 307, and without having any opportunity of cross-
examining the witnesses on the first charge with respect to the second charge.
Held, that the irregularity was one which was not covered by section 283.
Code of Criminal Procedure, anil that the prisoner hid been prejudiced thereby
in her defence. The trial under section 307 was accordingly quashed, and a
new trial ordered. The Queen v. Muunmut Iticarya, 22 W. B., 14 (1874).
Prejudice: An accused person whose signature to a statement made by him to the

committing Magistrate is not taken, as provided in section 310 of the Code of
Criminal Procedure, 1872, is not prejudiced thereby within the meaning of
that section, unless ho is unfairly affected as to his defence on the men s
Where a prisoner in the Court of Session was represented by a pleader who
had opportunity to object to the admissibility of his statement, and did not.
the High Court held that he was not prejudiced, lien. v. Dera Daual 11
Bom. H. C, 237 (1874) '
Omisisioii of the The omission of the word " dishonestly," both in the charge and in the
honestly ' in record of the conviction, is not a ground for reversal of conviction and sen-
cluirge 'mid tencc, wdiere an accused person has fully understood the nature of the offence
vicuou °' C0"' WM'C'' '1C 's charged, ami has not been prejudiced by the omission. Con
viction and sentence recorded by a Magistrate, and reversed by the Sessions
Judge upon this ground, restored by the High Court, ou appeal directed by
Government under section 272 of the Co le of Criminal Procedure, 1872. The
Queen v. Rdkhma, 10 Bom. U. C. 273 (1873).
S. 537-J Supplementary Provisions. 593
The statement of a Judge, who presides at a criminal trial, is, upon a case statement of
reserved under the 25th clause of the Charter of the High Court, or upon a J.ndVe conclu-
case certified by the Advocate-General under its 26th clause, conclusive as to j'ê to reserve
what has passed at the trial. Neither the affidavits of by-standers or of point of law not
jurors nor the notes of counsel or of short-hand writers are admissible to gûilli!^ by
controvert the statement of the Judge. It is in the discretion of the Judge, Judge-Non-
who presides at a criminal trial, whether or not he will reserve a point of law j'^'b'-aSyo-"
for the opinion of the High Court, and such direction will not be reviewed by c^to^General—°"
the High Court, sitting as a Court of review, under clause 26 of the Letters Abetment ol
Patent. Semble.—Non-direction by a Judge is not a matter upon which the ™"^bfc h,fwam)"
Advocate-General should grant a certificate under clause 26 of the Letters —Sorcery-
Patent. In considering whether a Judge has misdirected the jury, the tenor Îj^y, tS"«p-
and general effect of the whole summing up should be looked at, and if, upon pgal?
the whole summing up, the Court is of opinion that substantially the proper
direction has l>een given to the jury, it will not interfere, though the Judge has
omitted to direct the jury expressly on some important point. Whether abet
ment to murder by sorcery or other impossible means is an offence under the
Penal Code—Qucere.—In criminal cases the High Court will not, in general,
grant leave to appeal to the Privy Council, unless some important question of
law or practice, or jurisdiction, is involved. Considerations that guide the
Court in granting leave to appeal in such cases, stated, and instances in
which such leave has been granted, mentioned. Reg v. Pestanji Dinsha, 10
Bom. H. C., 75 (1872).
Appointment of the Magistrate, who in the first instance had tried and Appointment
convicted the accused, to be Crown Prosecutor to conduct an enquiry subse- b^cVown Prose"
qucntly directed in the same case, censured as being unprecedented and objec- cutor.
tionable. A Public Prosecutor should be without a personal interest in the
cases which he conducts. Prisoners should be allowed to have free converse
with their cakils out of the hearing of the police-officers in charge of such
prisoners. It is undesirable that Magistrates whose decisions are under appeal
or who have been engaged in promoting the prosecution, or police-officers
concerned in a case, should sit on the bench beside, or converse privately in
Court with, the Judge who is engaged in trying the prisoners' appeal. If the
appellate Judge wishes to ascertain any facts relating to the case from the
Magistrate who convicted the accused, he should examine the Magistrate upon
oath or solemn affirmation, in the same manner as an ordinary witness.
Reg. v. Kashinath Dinkar, 8 Bom. H. C, 126 (1871).
Under section 379 of the Code of Criminal Procedure, 1861, a Judge sumuiimi up—
Bhould sum up the evidence on both sides before requiring the jury to de- ^."^y-"1**""*-
liver their verdict Under section 430, however, the High Court thought it
unnecessary to set aside a conviction in a case in which this was not done.
The Queen v. Sittca, 14 W. B., 66 (1870).
Where the evidence of witnesses given on a previous trial was read over Evidence given
and used in a subsequent trial at the express request of the prisoners, instead of triM^Ym?"
the witnesses being examined de nooo, the High Court declined to interfere, aibility of
with reference to sections 426 and 439 of the Code of Criminal Procedure,
1861, as the irregularity of procedure was one by which the prisoners were not
prejudiced. Purmessur Singh v. Suroop Audhikaree, 13 W. R., 40 (1870).
It is irregular to allow a witness to be examined on behalf of the prose- Witneu for
cution after the prisoner has made his defence, when the witness is not a J™"0^'^"-
witness to contradict any new case set up by the prisoner. Where, however,
the prisoner had full notice of the evidence which was to be given by such
witness, and made his defence in allusion to the evidence of the witness, the
High Court refused to set aside the conviction, having regard to section 439
of the Code of Criminal Procedure, 1H61. The Queen v. Sham Kishore Hol-
dar, 13 W. K., 36 (1870)
Charge to jury In reviewing the charge of a Judge to a jury in the mofussil, it is

witness""5'1 sufficient to nee whether the tendency of the charge, taken as a whole, ha-s
given a correct or incorrect direction to the mind of the jury, and it is not
correct to apply to such charge t lie criticisms which would he applied to a
charge of a Judge in a Court in England. In order to make the evidence of
a deceased witness legally admissible, provided the admission of the evidence
is questioned, it is strictly necessary to prove the death of the witness.
Proof of such fact may be dispensed with if the prisoner's counsel admits
it. The Queen v. Gogalau, 12 W. 1!., 80 (1809).
Evidence (riven The irregularity and injustice of using against a prisoner in a subec-
iii former trial. fjUCnt lrja] tj10 t]ep0ti;tion of witnesses given in a previous ease commented
on, and the proper course which should be followed in corroborating evidence
under section 31, Act II of 1855, pointed out. The Queen v. Bi*hoiwth Pal,
12 W. B., 3 (1809).
Accomplice— ^ Held, that where the evidence of an accomplice is uncorroborated, the
Practice™ '0" correct practice requires Sessions Judges not merely to tell the jury that it is
ttnusuul to convict on such evidence, but that he should also tell them that it
is unsafe and contrary both to prudence and practice to do so, yet that his
omission to state this does not amount to an error in law, Reg. v. G<i>iu bin
Dharvji, 6 Bom. II. C.,57 (186*)).
Omission to In a trial conducted with the aid of assessors the Judge's omission to
Sj*^S35nV 8tate t,,c ground °f h'a decision is not an illegality which invalidates the con
viction. Reg. v. Kala Karsan, 0 Bom. H. C., 55 (1809).
Wtness'tor- Where a Deputy Magistrate did not draw up a charge in accordance with
defence. section 250 of the Code of Criminal Procedure, 180 1 , but gave the accused
clearly to understand the nature of the charges made against them, the irregu
larity was held to fall within section 403 of that Code. The Court quashed the
evidence which was passed upon a prisoner who had not been asked if he had
any witnesses to call, although he was tried at the same time with others who
had been so asked. Bhugican v. Doyai Gope, 10 W. B.,7 (1808).
Bumming up— Where a prisoner is on his trial by a jury upon a charge of murder, it is
Jury-New the duty of the Judge to point out to the jury accurately the difference
* between murder and culpable homicide not amounting to murder, and to
direct the attention of the jury to the evidence, and to have them to find t he
facts, and say (under the direction of the Judge as regards the law) of what
offence the prisoner is guilty. Where the provisions of section 379 of the
Code of Criminal Procedure, 1801, was neglected, and the Judge did not sum
up the evidence at all, a new trial was ordered Queen v. Shumshere Dey.'J
W. R., 51 (1868).
Bumming upot ®n a *r'a' by jury the Sessions Judge in summing up should give a fnil
Judge -Betting and detailed statement of the evidence on both sides ; he should point out the
aside verdict, legal bearing of it, and what weight the jury ought to attach to its several
parts. His omission to do so, if the accused is thereby prejudiced, amounts to
such an error in law as would justify a Court of appeal in setting aside the
verdict. No general rule can be laid down as to when a prisoner is prejudiced
by. a defective summing up, but in general if the finding of the jury in such
a case is one that an appeal Court would set aside, if the trial had taken place
with the aid of assessors, the Court will interfere and set the verdict aside.
Reg. v. Fatteh Chand, 5 Bom. H. C, 85 (18G8).
Misdirection— Conviction and sentence set aside (Glover, J., dissenting) &a to two of the
cmlfpUce °' "C~ Pr'soncrHi 011 l'ie £round tMat there was a misdirection to the jury, because the
coin], nr. Judge in summing up omitted to advise the jury not to convict upon the
uncorroborated evidence of an approver, and because he treated as corroborative
that which was no corroboration in law. Queen v. Naioab Jan, 8 W. R., 19
(1867).
Where there is no evidence against a prisoner, the Judge ought to charge Misdirection,
the jury for an acquittal, and not leave the jury to say whether the prisoner
is guilty or not. Queen v. Greedhary Alanjee, 7 W. R., 39 (1867).
Misreception of evidence is a defect or irregularity within the meaning Misrreepiion ol
of sections 426 and 439 of the Code of Criminal Procedure, 1861. Queen v. evidence.
Beharee Dosadh, 7 W. R , 7 (1867).
Held, in a case of murder, that the Judge had not given a proper direc- M indirection -
tion to the jury in telling them that it was for them to consider whether the S"jj0l,or"o(O|I(r
evidence of the accomplice was strictly corroborate I as to the prisoners ; that complice.0 *C
it was not enough that the evidence should disclose a state of facts consistent
with possibility of the truth of the accomplice's story ; and that the Judge
ought to have gone through the history of the crime as detailed by the ac
complice, to point out any independent evidence proving facts showing that
the prisoners were or must have been present at, or cognizant of, the murder.
The Queen v. Karoo, 6 W. R., 44 (1866).
A verdict of guilty of dacoity against certain of the prisoners set aside uiadirection.
on the ground of misdirection, the Judge having omitted to point out to the
jury the danger of reiving upon the uncorroborated testimony of accomplice.
Queen v. Khotab Sheikh, 6 W. R., 17 (1866).
A reference to proceedings in a former case declared to be irregular. Irregularity.
Queen v. Shobrattee Sheikh, 6 W. R., 2 (1866).
Improper advice given by the Judge to the jury upon a question of fact, I mprop
.iroper ....
ml-
or the omission of the Judge to give that advice which a Judge, in the "«* *,ven. uv
exercise of a sound judicial discretion, ought to give the jury upon questions " 10 Jury'
of fact, amounts to such an error in law in summing up as to justify the
High Court on appeal or revision in setting aside a verdict of guilty. In re
Elahee Buknh, 5 W. R., 80 (186$).
Held, by the majority of the Court that the omission of the Judge M indirection to
to enter into details regarding the identification of stolen property does n'it tlle iUTir-
amount to a misdirection to the jury. Queen v. Madhub Mai, 1 \V. R..
22 (1864).
538. No distress made under this Code shall be deemed pi.trei* not
unlawful, nor shall any person making the same be deemed a dlttraimra
trespasser, on account of any defect or want of form in the defc^t'oTwMit
summons, onviction, writ of distress or other proceedings relat- ol lo"n.in
mg thereto.
CIIAPTEU XLV1.
MISCELLANEOUS.
539. Affidavits and affirmations to be used before any <jjurt« and

High Court or any officer of such Court may be sworn and SKS^jfiftj^
affirmed before such Court or the Clerk of the Crown, or any »"> •» wnjnt.
Commissioner or other person appointed by such Court for that
-
596 Supplementary Provisions. [Ck. XL VI.
purpose, or any Judge, or any Commissioner for taking affida

vits in any Court of Ilecord in British India, or any Commis
sioner to administer oaths in England or Ireland, or any
Magistrate authorised to take affidavits or affirmations in Scot
land.
iPower
ummontomute- 540. Any J Court
. may,
y ' at
■ any
J stige
o of anyJ inquirv,
T J ' trial <»r
rial witness, or other proceeding under this Uode, summon any person as a witness,
present? p*™0" or examine any person in attendance, though not summoned as
a witness, or recall and re-examine .any person already examined ;
and the Court shall summon andexamiuo or recall and re-examine
any such person if his evidence appears to it essential to the
just decision of the case.
Crosh-examin- Where in the course of a criminal proceeding a Magistrate himself
Htion ot witness summoned a witness and examined her under section 165 of the Evidence
Court. b'V th° k"' re^ll8ei' to "How the attornoy who appeared for the complainant
to cross-examine the « itness : Held, that the Magistrate was wrong in not
allowing the complainant's attorney to cross-examine the witness when she
was summoned. Held, also, that there is nothing in section 165 debarring
or disqualifying a party to a proceeding for cross-examining any witness
summoned by the Court. Gopal Lull Seal v. Matuck Lull Seal, I. L. R..
24 Gal, 288 (1897).
Magistrate, Where a Magistrate before whom a complaint was made held an enquiry
Euiuu™tU)'.r
of >iuKisirutuU to under 8ectionthe202
ascertaining of or
truth tllefalsehood
Criminal ofProcedure Code, 1882,
the complaint beforeforissuing
the purpose of
process,
try case. and, after holding such enquiry, summoned the accused, examined witnesses
on bjth sides, and, after a short adjournment, examined a witness culled l>v
himself , and found the accused guilty under section 341 of the Penal Code :
Held, that there is nothing in the Code which disqualifies a Magistrate who
holds a preliminary enquiry under suction 202 from trying the case himself,
and that the provisions of section 555 have no application, inasmuch as the
Magistrate had not initiated or directed the proceedings against the accused
person, nor taken an active part in the arrest or collection of evidence uguinst
such person. Held, also, that the Magistrate was strictly within his rights
under section 540 of the Code in receiving fresh evidence after evidence on
both sides had been taken and the case adjourned for judgment, inasmuch as
the case was still a pending case when such evidence was takeu. Anutuia
Chunder Singh v. Basu Mudh, I. L. R., 24 Cal., 167 (1896).
Sessions trial— " Questions put by the Court to an accused person under the provisions of
Accused person, section 342 of the Code of Criminal Procedure, 1882, must be strictly limited
\V ihlelVs"1 ° to the purpose described in that section, i. e., " of enabling the accused to
treatment of.by explain any circumstances appearing in the evidence against him." The evid-
eiamWatio'i''-0' ence re£erre(l to m that section is the evidence already given at the trial at
Judgment— the time when the Court puts questions to the accused. It is not intended by
Sentence. section 540 of the Code that a Judge shall reverse the order of a Sessions
trial and call the witnesses summoned for the defence before the case for the
prosecution is closed. It is illegal on the part of a Court to threaten wit
nesses with the penalties of the law unless they are evidently giving wilfully
false evidence, or persistently refusing to give evidence of facts which must
be within their knowledge. A seutence which has been passed or a direction
that an accused be set at liberty which has been given at a Sessions trial
before the judgment required by section 367 of the Code has been written, is
illegal. Queen-Enipress v. Haryobind Sinyh, I. L. B., 14 All., 242 (1892).
Section 540 of the Co lo of Criminal Procedure, 188.', doea not authorise a Power to sum-
Sessions Judgo to summon witnesses after the trial has heen concluded, so ™j°tl,ie!ât€ria'
far that no witnesses remain to be examined for either side and the assessors
have given their opinion. Aioal K/uui v. Queen-Empress, Punj. Kec., 1892,
p. 9.
In a petilion of appeal from a conviction, the appellant falsely stated Examination on
that the convicting Magistrate declined to summon his witnesses. The affirmation of
Magistrate to whom the appeal was preferred called upon the appellant to £°°rnnrnal
verify the allegations in the petilion of appeal on solemn affirmation, and he appeal-Verifl-
did so : JM I, that the appellant had not committed an offence under section tioVi°o(°ifpiwal.
181 or 182 of the Penal Code. Queen-Empress v. Subbayya, I. L. B., 12 Mad.,
451 (1889).
The giving
°. .9 of any
- {. documentary
. -7. evidence by■ an,- accusedlie
person,1 during
• 1 the1 by
Witness called
Court—Ten-
cross-examination of the witnesses tor the prosecution, and before lie is asked. deTiug w,t-
under section 289 if he means to adduce evidence, does not give a right of nesscs for
reply to the prosecution. In a trial before the Sessions Court, the prosecution tt^Jêxftm"1"
is not boun 1 to tender for cross-examination all witnesses called before the
committing Magistrate. The Court would not call a witness on whose evi
dence it could not put implicit reliance. Emprems of India v. Kaliprosunnb
Dm*, I. L. K., 14 CaL, 245 (188:5).
Upon the committal of certain persons for trial before the Sessions Court Witness for
for offence under the Penal Code, each of the prisoners, under section 211 of jjftP* jj"11?'.11*
the Criaiinal Procedure Code, 1882, gave in a written list of the persona whom trateyto sum-
he wished to be summoned to give evidence at the trial On each of theae wn witness-
lists, the name of a particular person was entered, who objected under section mon'ed DyU8es-
21G to being summoned on the ground that the summons was desired for vexa- Bi0ns Court -
tious purposes only, and that there were no reasonable grounds for believing Power of Ses-
that any evidence he could give would be material. Upon this objection, the 'umtnon wit-
committing Magistrate passed an order requiring the prisoners to satisfy him ness.
that there were reasonable grounds for believing that the objector's evidence
was material, and, having heard arguments on both sides, passed an order
refusing to issue the summons. The only ground stated by the Magistrate
for this order was, that he thought the reasons assigned for the application to
have the objectors summoned were insufficient. Subsequent to the order, aDd
before the trial in the Sessions Court had begun, the Sessions Judge, upon
an application liled on behalf of the prisoners, passed an order directing that
the objector should be summoned to give evidence. The order assigned no
reasons, and was passed in the absence of the objector or of any person repre
senting him, and without notice to show cause being issued to him. The
objector applied to the High Court for revision of the order on the ground
that the Sessions Judge had no jurisdiction to make it. Held, that when a
Magistrate refuses, under section 210 of the Criminal Procedure Code, to
summon a witness included in the list of the accused, he muat record his
reasons for such refusal, and such reasons must show that the evidence of
such witness is not material ; that the ground stated by the Magistrate, viz.,
that the reasons assigned for the application to have the objector summoned
were insufficient, did not show that the evidence was not material ; that the
Sessions Judge had jurisdiction to make the order complained of ; and that,
even if he had not, it would not, under the circumstances, be desirable to
interfere with iiis order in revision. Per Straight, J.—That section 540 is not
the only provision of the Criminal Procedure Code which confers on a Ses
sions Judge powers of the kind exercised by him in this case. Under section
291, though the summoning of witnesses by an accused through the medium
of the Sessions Judge is not a matter of right, yet the Judge has an inherent
power, if he thinks proper to exercise it, to sanction the summoning of other
witnesses than those named in the list delivered to tho committing Magis
trate. In re Rajah of Kantit, I. L. K., 8 AIL, 66 (1886).
598 Supplementary Provisions. [Ch. XLVI.
Power of Court Section 540 of the Code of Criminal Procedure, 1882, is a supplementary
roatcri»l"wit- provision enabling, and, in certain circumstances, imposing on tlie Court the
ness. duty of summoning a material or essential witness who would not otherwise
be brought before the Court. A Magistrate misuses that section in using it
to anticipate the defence of an accused person to his prejudice ; and in using
it, after satisfying himself that he has a good defence, to discharge instead
of acquitting him. A Magistrate cannot properly resort to the section in
order to avoid the responsibility of making up his mind us to the value of the
evidence for the prosecution ; nor do 8 the power therein conferred upon a
Court to summon a witness extend to witnesses named for the prosecution or
the defence ; for such witnesses the Court is bound to summon, unless there
bo cause to the contrary. Chetu v. The Empress, Punj. Rec, 1886, p. 19.
Power of Judge Under section 165 of the Indian Evidence Act (I of 1872), a Judge has
of asking i rre- the power of asking irrelevant questions to a witness, if he does so in
Moni. **" °rder to obtain proof of relevant facts ; but if he asks questions with a view
to criminal proceedings being taken against the witness, the witness is not
bound to answer them, and cannot be punished for not answering them, under
section 179 of the Penal Code. Queen- Empress v. Hart Lokshman, I. L. B,
'0 Bo>\, 185 (1885).
Evidence- It is primd facie the duty of the prosecution to call all the witnesses who
cu"ioii°,In?>!,e" prove their connection with the transactions connected with the prosecution,
ferences to be and who must be able to give important information. If such witnesses are
ureTocUll'"'' not ca"ed without sufficient reason being shown, the Court may properly
witne«es. draw an inference adverse to the prosecution. The only thing that ran
relieve the prosecutor from calling such witnesses, is the reasonable belief
that, if called, they would not speak the truth. No such corresponding in
ference can be drawn against an accused. The Empress v. Dhunno Kazi, 1
L. B., 8 Cal., 121 (1881).
Confession— A prisoner, charged together with others with being a member of an
Aamission- unlawful assembly, made a statement before the committing: Magistrate ira-
Exnmumtioii of phcating his j.,,'
witnesses- .
tellow-pnsoners and, another person. He subsequently
,° ™ , . with-...
Judge drew this statement, and made another, in which he endeavoured to excul
pate himself. Held, that this statement was not evidence against the other
prisoners under section 30 of the Evidence Act. It was not a confession, nor
did it amount to any admission by the prisoner that he was guilty in any
degree of the offence charged, but it was simply an endeavour on his part
to explain his own presence on the occasion in such a manner as to exculpate
himself, and any mention made by him in such a statement of other persons
having been engaged in the riot was altogether irrelevant, and not evidence
against them. At a trial before a Sessions Court the Judge, on i be examina
tion-in-chief of the witnesses at considerable length upon the ooints to which
he must have known that the cross-examination would certainly and properly
be directed : Held, that such a course of procedure was irregular, and op
posed to the provisions of section 138 of the Evidence Act. It is not in the pro
vince of the Court to examine the witnesses, unless the pleaders on either side
have omitted to put some material question or questions; and the Court should,
as a general rule, leave the witnesses to the pleaders to be dealt with as
laid down in section 138 of the Act. Noor Bux Kazi v. The Empress, I. L.
R., 6 Cal., 279 (1880).
Witness called Witnesses summoned on behalf of the prosecution, and not cul'ed,
Blight foTroTs- ought to be p,ilced in t,ie box for cross-examination, in order that thedefence
eramine. Iuny llave tlie opportunity of exercising this right, and a fortiori, if such
a witness is called and examined i.y the Court under section 165 of the Evi
dence Act, the prisoner should be allowed to cross-examine. The Emprtti v.
Grith Chunder Talukdar, I. L. R., 5 Cal.. 614 (1879).
S. 541 ] Supplementary Provisions. 599
541. (1) Unless when otherwise provided by any law for JjEtptaceoi
the time being in force, tho Local Government may direct in imprisonment,
what place any person liable to be imprisoned or committed to
custody under this Code shall be confined.
[2) If any person liable to be imprisoned or committed to Bomovai to
custody under this Code is in confinement in a civil jail, the Court accu'sedor^'on^
or Magistrate ordering the imprisonment or committal may wh^re?™on-
direct that the person be removed to a criminal jail. cwT'jIuV'anti
, ........ their return to
(3) When a person is removed to a criminal jail under sub- the civil Jail,
section / }, he shall on being released therefrom, be sent back to
the civil jail, unless either—
(a) three years have elapsed s'nee he was removed to the
criminal jail, in which case he shall be deemed to have
been discharged from the civil jail under section 342
of the Code of Civil Procedure ; * or
(A) the Court which ordered his imprisonment in the civil
jail has certified to the officer in charge of the crimi
nal j.iil that he is entitled to be discharged under
section 341 of the Code of Civil Procedure. *
[Under the provisions of section 541 of the Criminal Procedure ^ropean^may
Code, His Honor the Lieutenant-Governor and Chief Commissioner is be confined. ]
pleased to declare the following to be places in which Europeans liable
to be imprisoned, or committed to custody, may be confined :—
1. European prisoners under trial before Courts of Session or of

Magistrate —
In cases where local arrangements cannot be made for their safe
custody, in the nearest of the following prisons :—
Agra Central Prison. Fatehgarh Central Prison.
Lucknow „ ,, Saharanpur District Jail.
Allahabad ,, „ Jhansi „ ,,
Gorakhpur District Jail.
2. European prisoners sentenced to imprisonment for a term not
exceeding three months—
those of the Meerut and Agra Divisions, in the Agra Central
Prison j
those of the Rohilkhand and Kumaun Divisions and of Oudh,
in the Lucknow Central Prison ; and
those of the Allahabad, Benares and Gorakhpur Divisions, in
the Allahabad Central Prison.
• No. Xiv of 1882.
Supplementary Provisions. [Ch. XLVI.
3. All prisoners sentenced to a term of over three months will be

sent to the Allahabad Central Prison. (Manual of Orders of Govern
ment, N.-W. P. and Oudh, Vol. I, Part VI, p. 97).
Power of Presi- 542. (1) Notwithstanding anything contained in the Pri-
thlteyto*o"der soners' Testimony Act,* 1869, any Presidency Magistrate desirous
prisoner in jjaii of examining, as a witness or an accused person, in any case pencl-
inp for e'xainiim- ing before him, any person confined in any jail within the local
t'*n" limits of his jurisdiction, may issue an order to the officer in
charge of the said jail requiring him to bring such prisoner in
proper custody, at a time to be therein named, to the Magistrate
for examination.
(2) The officer so in charge, on receipt of such order, shall

act in accordance therewith, and shall provile for the safe cus
tody of the prisoner during his absence from the jail for the pur
pose aforesaid.
interpreter to 543. When the services of an interpreter are required by

te 'reMruih'-"" an^ Criminal
fuH}™ ru 1 statement, Court beforbound
he shall the interpretation of interpretation
to state the true any evidence orof
such evidence or statement.
[ Onths or »mr- [ 5 (Oaths Act X of 1873). Oaths or affirmations shall be made
™ade by - *" by the fouowing persons :—
[ interpreters, l (&) interpreters of questions pat to, and evidence given by, wit
nesses ; 1
Expenwwof 544. Subject to any rules made by the Local Government

»ndPwitne"st. w^.n ^no Previous sanction of the Governor-General in Council, any
Criminal Court may, if it thinks fit, order payment, on the part
of Government, of the reasonable expenses of any complainant
or witness attending for the purposes of any inquiry, trial or
other proceeding before such Court under this Code.
Power of court 545. (1) Whenever under any law iti force for the time
to^yei(P^nse» being a Criminal Court imposes a fine or confirms in appe.il, revi-
tionoutof fine, sion or otherwise a sentence of fine, or a sentancc of which fine
forms a part, the Court may. when passing judgment, order the
whole or any part of the fine recovered to be applied—
(a) in defraying expenses properly incurred in the prosecu

tion ;
(£>) in compensation for the injury caused by the offence
committed, where substantial compensation is, in the
opinion of the Court, rec iverable by civil suit.
• No. XV of 1869.
Ss 542-545.] Supplementary Provisions. 60 1
(2) If the fine is imposed in a case which is subject to appeal,

no such payment shall be made before the period allowed for
presenting the appeal has elapsed, or, if an appeal bo presented,
before the decision of the appeal.
On a sentence of fine being passed it was ordered, under section 545 Portion of flue
of the Code of Criminal Procedure, 1882, that a portion of the tine should be i^sntlor^'to
paid as compensation to the complainant, and it was so paid. Subsequently complainan—
the sentence was set aside in revision by an order of the High Court which flnet<:"£t aside
directed that the fines should lie refunded. Held, that the sum which hail — itccovery of
been paid to the complainant was recoverable under this order as part of the compen»»uon
original fine, and that it was recoverable by process under section 547 of the nt°t—Proce^"'""
Code and not by suit in a Civil Court. Mutamddi v. Mani Rain, I. L. It., dure.
19 All., 112 (1890).
The Magistrate having convicted the accused persons under section 323 Compensation,
of the Penal Code, of hurt, fined them Us. 20 each, and directed that out of
the fine realized Rs. 30 be paid to the mother of the deceased. Held, that the
award of compensation was illegal. The mother had not incurred any expen
ses in prosecution, nor had any injury been caused to her by the hurt inflict
ed on the deceased, for which compensation could be recovered by her in a
civil suit. Hi/at v. Mamun, Punj. Uec, 1890, p 12.
An order that the amount of a fine imposed on one convicted of causing Compensation
death by a rash and negligent act be paid as compensation to the widow of Wl1
the deceased is illegal. In re Lutchmaka, I. L. R., 12 Mad., 352 (1889).
There is no provision in the Code of Criminal Procedure, 1882, under Povjfce commit
which an accused person can obtain a BUmmiry order from Criminal Com-4 led by Biitith
directing the refund of a fine which has been paid as compensati"- soldiers,
complainant under section 545 of the Code, and subsequently reri : 1
superior Court. Chugatta v. The Empreex, Punj. Rec., 1889, p. .' ,nlCn Power, to
r . •Finch may be p°Iicc t0 K,u
Held, that the power of the Chief Court ate suspicion of the com- pected'to be"
aside illegal orders awarding compenfilJe-olficer. if subordinate to the "°'en'
taken to mclude the.power to direg^ shall forthwith report the
pensation under such orders. // ' i*>|wn, iuo
1885, p. 25.
Crin$3 pTollufe? 18r%rS suf,eri«r rank to an oêr iff charge Powers of
upoa a conviction for . .may exercisa the s ime powers, throughout SfSSiSS.
be found upon a stat "ich they are appointed, as may bo exercised
ascertained at tln'ithin the limits of his station
53 (1809).
Theirope' 1,011 comphiint made to a Presidency Magistrate or Power to con>-
nal Procedui'ag^rate on 0.1th of th a abduction or unlawful deten- o?' .wSSeU™
payment to t.oman> "r °f a female child under the age of fourteen
regard to tinny unlawful purpose, he may make an order for
section 290 <• restoration of such woman to her liberty, or of s
Mohtth 'child to her husband, parent, guardian or other pei
Con *''10 k,w*u' charge of such child, and may compel c
1801 eaniv^1 9UC'1 orc'er' using such force as may be necessary
suffered 1 —
been ki * ** an<l K vic,> Ci **•
602 Supplementary Frovisions, [Ch. XLVI.
Jutiadktion— The Joint Magistrate was held not competent to direct under section
mne-Hlschiel ^4 ,jf the Code o£ Cl.imintt| procodurei 1861, that a portion of a fine
inflicted under section 434 of the Penal Code be paid to an ameen for the
purpose of paying the expense of his deputation to restore land murks which
had been destroyed by the opposite party. Queen v. Moorut Lall, 6 W R
93 (1800).
{■(sen™1 into ^ 546« At the time of awarding compensation in any
account in mb- subsequent civil suit relating to the same matter, the Court
sequen sin . Bhall take int;i account any sum paid or recovered as compensa
tion under section 545.
Compensation— The expiession " taken into account " in the Code of Criminal Proce-
for damage. dure, 1872, section 308, means that the compensation awarded by the
Magistrate is to be taken into consideration by the Court in a subsequent
civil suit, not that it is to be afterwards deducted from the damages
awarded. William Nicholas Love v. William Julm Ainsworth, 22 W. B.,
336 (1874).
Copies of docu- The High Court, in the exercise of the powers vested in them by section
ments. 4Q5 0f tne (jodc 0f Criminal Procedure, 1801, set aside the conviction of a
prisoner in a case in which the Magistrate refused to grant him copies of
papers which were necessary for his defence. A Magistrate acts contrary to
law w here he determines on an application by a prisoner for copies of docu
ments required for his defence, whether the documents are necessary or not,
In re Sheeb Pcrsliad Pumlah, 14 W. I!., 77 (1870)
[ Oat 11,
madeby- be" - 547. Any money (other than a fine, payable by virtue of
/tder made under this Code shall be recoverable as if it were
[ interpreters. 1 [0) 1.
neases ; ")
. «j q„ u"~ 1 1 ' ;"? passed it was ordered, under section 545 of the
eo'nSant, f,**" • J J 7 i *C°rti°n of the fine should be paid as com-
Wltn tne previous sanction ot the « B0 paid. Subsequently the sentence
and witnesses. Criminal Court may, if it thinks fit, ite High Court which directed that
of Government, of the reasonable 6Smn which had been paid to the
or witness attending for the purposes o?a* Jj oJSfidw^S
other proceeding before such Court under th»°i{ ^ [y ^11° 1*12
Power of Court 545. {1) Whenever under any law in 1 N
SjJSiJSET" being * Criminal Court impases a fine or confirthi or order pas^
tion out of tine, sion or otherwis3 a sentence of fine, or a sent3nc<rU(*ge s chari
forms a part, the Court may. when passing judgmcPart o' tu5|
whole or any part of the fine recovered to be applied— ther^
(n) in defraying expenses properly incurred in the prosfjoirt, f°r

tion ;
lb) in compensation for the injury caused by the offenC---
committed, where substantial compensation is, in tb ^
opinion of the Court, rec >verable by civil suit.
• No. XV of I860,
Ss. 546-552 ] Supplementary Frovisions. 603
549. (1) The Governor-General in Council may make rules, S?iitS^r «ftii 0-
consistent with this Code and the Army Act* or any similar law riiiesoi persons
for the time being in force, as to the cases in which persons by com-t-mar^1
subject to military law shall Iw tried by a Court to which this tial-
Code applies, or by Court-martial ; and when any person is
brought before a Magistrate and charged with an offence for
which he is liable, under the Army Act," section 41, to be tried
by a Court-martial, such Magistrate shall have re»ard to such
rules, and shall in proper cases deliver him, together with a
statement of the offence of which he is accused, to the command
ing officer of the regiment, corps or detachment to which he
b?longs, or to the commanding officer of the nearest military
station, for the purpose of being tried by Court-martial.
,. v(2)i Every
/ Magistrate
o , shall,' on receiving
at a written
c appli- of
11 Apprehension
such persons.
cation tor that purpose by the commanding officer ot any body ot
troops stationed or employed at any such place, use his utmost
endeavours to apprehend and secure any person accused of such
offence.
Section 101 of the Mutiny Act rlocs not deprive the Civil (us opposed to Mutiny Act,
Military) Courts of jurisdiction over British soldiers committing offences j^^"^^"1-
within the territorial limits of those Courts, nor render the exercise of their Qj civil (as
jurisdiction dependent upon the sanction of the Commander-in-Chief. Tlie opposed^to Mi-
section is merely permissive of u military trial being held. The Ewpi-exs v. ^c<wKQ°ommii-
Maguire, I. L. B., 5 Cal., 124 (1879). ted by Biitish
soldiers.
55 O. Any police-officer may seize any property which may power8 to
be alleged or suspected to have been stolen, or which may be ^0^rty° ™™
found under circumstances which create suspicion of the com- pected to be
mission of any offence. Such police-officer, if subordinate to the soe '
officer in charge of a police-station, shall forthwith report the
seizure t> that officer.
551> Police-officers superior in rank to an officer in charge Powers of

of a police-station may exercise the same powers, throughout ofpoUce.0 oe™
the local area to which they are appointed, as may bo exercised
by such officer within the limits of his station.
55Z. Upon complaint made to a Presidency Magistrate or J^^^Sl

District Magistrate on o.ith ot tli3 abduction or unlawful deten- of abducted
tion of a woman, or of a female child under the age of fourteen female9-
years, for any unlawful purpose, he may make an order for the
immediate restoration of such woman to her liberty, or of such
female child to ber husband, parent, guardian or other person
having the lawful charge of such child, and may compel com
pliance with such order, using such force as may be necessary.
• *i and 15 Vic, c. 68.
604 Supplementary Provisions. [Ch XLVI.
Unlawful de- A Hindu girl, under the age of 14 years, went of her own accord to a
tentioii for an Mission House, where she was received and allowed to remain. The mother
pose-Infant'" alul husband of the girl thereupon applied to the Magistrate, who took proceed-
Cuitoclyof. ' ings under section 551 of the Criminal Procedure Code, 1882. The Lady
Superintendent of the Mission House denied that the girl was legally married,
and alleged that she was practically being brought up with connivance of the
mother to a life of prostitution. The Magistrate, after recording evidence,
found that the girl was legally married ; that the other allegation was not
established : and that, although she went to and remained in the Mission
House of her own free will, there was, under the circumstances, an unlawful
detention for an unlawful purpose. He further found that there were no facts
established which would disentitle the husband or the mother to the custody
of the girl, and passed an order under the section directing the girl to be res
tored to her mother, Held, upon the facts as found by the Magistrate, as it
was immaterial whether the girl did or did not consent to remain at the Mis
sion House, there was an unlawful detention within the meaning of these
wards as -used in the section, as the girl was kept against the will of those
who were lawfully entitled to have charge of her. field, also, that section
551, applying only as it does to women and female children, must not be con
strued so as to make it include purposes which, although not unlawful in them
selves, might only become so when entertained towards a child in opposition
to the wishes of its guardian, but that the purpose, whether entertained to
wards a woman or a female child, must be in itself unlawful. Held, conse
quently, that, in the circumstances of the case, there was no detention for an
unlawful purpose, and that the Magistrate had no power to make the order.
Held, further, that, akhough the Magistrate had no power under the section
to make the order he did, it did not follow that the Court should direct the
girl to be restored to the custody of the Lady Superintendent, even if it had
the power to do bo, ami that having regard to the circumstances of the case,
there was nothing to justify such an or ier being passed. Abraham v. Mali-
tabo, I. L. R., 16 Cal., -187 (1889).
to°peMonst!on 553. (/) Whenever any person causes a police-officer to
itroundicssiy arrest another person in n presidency-town, if it appears to the Ma
in preudency- gistrato by whom the case is heard that there was no sufficient
town. ground for causing such arrest, the Magistrate may award such
compensation not exceeding fifty rupees, to be paid by the person
so causing the arrest to the person so arrested, for his loss of time
and expenses in the matter, as the Magistrate thinks fit.
(2) In such cases, if more persons than one are arrested, the
Magistrate inay, in like manner, award to each of them such com
pensation, not exceeding fifty rupees, as such Magistrate thinks fit
(<3) All compensation awarded under this section may be re>
covered as if it were a fine, and, if it cannot be so recovered, the
person by whom it is payable shall be sentenced to simple impri
sonment for such term not exceeding thirty days as the Magistral
directs, unless such sum is sooner paid.
Power of Char- 554. (/) With the previous saneiion of the Governor-Gene-
CoTi? "toLke r>l1 in Council, the High Court at Fort William, and, with the pre-
tim?o7r"cim'is vwus fianc''ion of the Loc il Government, any o;her Hioh Court
of subordinate established by Uoyal Charter, may, from time to time, make rules
Courts. j.Qr jjje inaction 0f the records of subordimte Courts
(2) Every High Court not established by Royal Charter may, Power of other
from time to time, and with the previous sanction of the Local Snke rules* for
Government,— otl,er Purpo,e"-
(a) make rules for keeping all books, entries and accounts
to bo kept in all Criminal Courts subordinate to it. and
for the preparation and transmission of any returns or
statements to be prepared and submitted by such Courts ;
(J) frame forms for every proceeding in the said Courts for
which it thinks that a form should be provided ;
(c) make rules for regulating its own practice and pro
ceedings and the practice and proceedings of all Criminal
Courts subordinate to it ; and
(d) mike rules for regulating the execution of warrants
issued under this Code for the levy of fines :
Provided that the rules and forms made and framed under
this section shall not be inconsistent with this Code or any other
law in force for the time being.
(<3) All rules made under this section shall be published in
the local official Gazette.
555. Subject to the power conferred by section 553, and Forms,
by section 15 of the Indian High Courts Act,* 1861. the forms set
forth in the fifth schedule, with such variation as the circumstances
of each case require, may be used for the respective purposes
therein mentioned, and if used shall be sufficient.
556. No Judge or Magistrate shall, except with ihe per mis- $X°or Mis
sion of the Court to which an appeal lies from his Court, try or r''tois pc™»'>-
•. n , . 1 , • 1 • i 1 • , * oily interested.
commit tor trial any case to or in winch he is a party, or person
ally interested, and no Judga or Magistrate shall hear an appeal
from any judgment or order passed or made by himself.
Explanation.— A Judge or Magistrate shall not be deemed
to be a party or personally interested, within the meaning of this
section, to or in any case by reason only that h a is a Municipal
Commissioner or otherwise concerned therein in a public cap icity,
or by reason only that he has viewed the place in which an offence
is alleged to have been committed, or any other place in which any
other transaction material to the case is alleged to have occurred,
and made an inquiry in connection with the case.
Illustration.
A, as Collector, upon consideration of information furnished to
him, directs the prosecution of B for a breach of the Excise Laws. A
is disqualified from trying this case as a Magistrate.
•24 4 25 Vice. 10*.
6o6 Supplementary Provisions. [Ch. XLVI.
Disqualification Where a Magistrate before whom a complaint was made held an enquiry
t^casls'™'6
1 v ' '° or under sectionof202,
falsehood theAct X of 1882,
complaint forissuing
before tlie purpose of and,
process, ascertaining the truth
after holding such
enquiry summoned the accused, examined witnesses on both sides, and, after
a short adjournment, examined a witness called by himself, and found the
accused guilty under section 341 of the Penal Code. Held, that there is
nothing in the Criminal Procedure Code (Act X of 1882) which disqualifies a
Magistrate who holds a preliminary enquiry under seetion 202 from trying
the case himself, and that the provisions of section 555 have no application,
inasmuch as the Magistrate had not initiated or directed the proceedings
against the accused person, nor taken an active part in the arrest or collection
of evidence against such person Held, also, that the Magistrate was strictly
within his rights under section 540 of the Code in receiving fresh evidence
after evidence on both sides had been taken and the cass adjourned for judg
ment, inasmuch as the case was still a pending case when such evidence was
taken. Ananda Chunder Singh v. Bam Mudh, I. L R,, 24 Cal., 167 (18'JG).
of'BoUJurtKo—°" ,^''e acc,lso(' was 11 compounder in the employ of Treacher and Co. He
Pecuniary was tried and convicted by the Presidency Magistrate of criminal breach of
interest. trust as a servant in respect of certain goods belonging to the company. It
appeared that the Magistrate was a shareholder in the company which pro
secuted the accused. Ileld, that the Magistrate was disqualified from trying
the case. As a shareholder of the company he had pecuniary interest, how
ever small, in the result of the accusation, and was, therefore, " personally
interested in the case within the meaning of section 555 of the Code of
Criminal Procedure, 1882. The words "personally interested" in the section
are not intended to exclude pecuniary as distinguished from a personal inter
est. In re P. A . Rodrigues, I. L. K., 20 Bom., 502 (1895).
Mwr/strate co" Where an Assistant Magistrate with second class powers was directed by
lcctiiiir evidence t'ie District Magistrate to take up a case of some complexity arising out of dis-
on local putcd boundaries of land in which the accused were charged with rioting,
trate tryir*9 trespass, mischief and theft, and where, in the course of sucli investigation, he
case-Corn- held a local enquiry extending over tive days, during which he made a number
witness—Exam- °^ notes alu' "Ppcared to have made a very careful and conscientious invest*-
inationof Magis- gation of the locality, such as would properly be made by a person whose
trate trying duty it was to get at the facts with a view to lay the same before some tri
witness. bunal, and during such investigation it appeared that he acquired a large
amount of information with reference to the occurrence on which he had to
arrive at a judicial determination, but which, by reason of the way it was
acquired, he could not properly or legally consider in arriving at an ultimate
decision of the case, (such information not being guarded by the safe-guards
by which statements on which a Judge or a Magistrate exercising judicial func
tions can act must be guarded), and where it was suggested that the notes so
made should be put on the record, and the Assistant Magistrate tender himself
while trying the case as a witness to be cross-examined by either the pro
secution or the defence : Held, that such a course could not be allowed, and
that the Assistant Magistrate ought not to try the case, but that it must be
transferred to some other Magistrate exercising first class powers for disposal .
Powers of Magistrates to hold local investigations and the nature of such in
vestigations discussed. Whenever it is desirable for a Magistrate to view the
place at which an occurrence, the subject-matter of a judicial investigation
before him, has taken place, he should be careful to confine himself to such a
view of the place as to enable him to understand the evidence placed before
him, and should take care that no information reaches him with reference to
the occurrence which he has to investigate beyond what he acquires by that
view, and if the place of the occurrence be in dispute he would be wise in
postponing his visit till all the evidence has been recorded, if under such cir
cumstances he feels disposed to visit it at all. But where a local enquiry by
11 Magistrate takes the form of an investigation into the occurrence on the

site of the occurrence instead of in his own Court, and he takes evidence
on the spot, such evidence should not be recorded unless it is protected by all
the safe guards by which evidence, on which a Judge may act, is protected by
law. Hart Kishore Mitra v. Abdul Bale! Allah, I. L. R., 21 Ual., '.120 (1894).
Where a District Magistrate, as prosecutor, initiated and directed the pro- Mniristrste dis-
ceedings against certain accused persons who were charged by him withhav- qunlifyinn in-
iug committed offences punishable under sections 143 and 150 of the Penal c'riminlii-
Code, and where it appeared that the District Magistrate had himself taken procoedinsrs—
an active part in causing the dispersion of the unlawful assembly, and had .Vp®*sjJntillv ~
pursued and directed the pursuit of the members thereof, and that he sub- interested.'''
sequently took pains to collect the evidence showing the connection of the ac
cused with the unlawful assembly and the keeping of armed men, on which
evidence the accused were afterwards convicted by himself ; and where it also
appeared from the judgment of the District Magistrate that he had embodied
therein matters which, if relevant, showed that he should have been exa
mined as a witness, and that such matters should not have been stated with
out the accused having had an opportunity of testing them by cross exami
nation: Held, that the District Magistrate was disqualified from trying the case
himself, and that the conviction must be set aside and a fresh trial held before
some other Magistrate. The words ' personally interested " as used in sec
tion 555 of the Code of Criminal Procedure, 1882, do not merely7 mean " pri
vately interested " or " interested as a private individual," but include such an
interest as the District Magistrate must have had under the above circum
stances in the conviction of the accused. Girish Chunder Ghost v. The Queen-
Empress, I L. R., 20 Cul., 857 (1893).
The mere fact that a Magistrate is the Vice-President of a District Muni- Disqualification
cipality and Chairman of the Managing Committee does not disqualify hi.n ^^"j^roit-
from trying a charge of an offence brought by the Municipality under Bom- liomhayUistrict
bay Act VI of 1873. But if he has taken any part in promoting the prosecu- Municipal Act
tion, as, for instance, by concurring in sanctioning it at a meeting of the of 18,3)'
Managing Committee or otherwise, he will be disqualified by reason of the
existence of a personal interest over and above what may be supposed to be
felt by every Municipal Commissioner in the affairs of the Municipality.
Queen- Empress v. Pherozsha Pexlnnji, I L. R., 18 Bom., 442 (1893).
A Magistrate in charge of the" excise and opium administration of a dis- Jurisdiction of
trict is not " personally interested" in the observance of Act No. I of 1878. "ShtTe»ci»Bû5S
He is therefore not precluded from exercising jurisdiction in respect of 0l1jlml ndminis-
offenccs against the above mentioned Act. In re Ganeshi, I. L. H., 15 All., (F. trntion of a di«-
»■> ™* (1893) ™,d£ the
A Deputy Magistrate, being also the Chariman of a Municipality, with- 0l""m Act'
out issuing process, or making a record of the proceedings, or dismounting Summary pro-
from a pony on which he was riding, convicted and fined an inhabitant of the .'."'"-"j ot
town, who admitted that he had raised the level of a road within the limits W"8 ra e°
of the Municipality which was considered by the Magistrate to amount to the
offence of causing an obstruction in a public way. Queen-Empress v. Erugadu,
I. L. R., 15 Mad., 83 (1891).
On the 29th of March, 1883, the Municipal Commissioners of Commillah ' isobedience ot
at a meeting issued an order under section 256 of the Bengal Municipal Act of jjjjj^t of^Ma"
1876. The accused was tried and convicted before the District Magistrate Ki9trntc in con-
under section 188 of the Penal Code, and fined Rs. 100 for having disobeyed victim? the pri-
that order. The V agistrate, who tried and convicted the accused, was present as quaf^^'on
Chairman of the Municipal Commissioners at the meetingof the 29th of March of Judge,
when the order was passed for disobedience, of which the accused was tried
and convicted. Held, that the conviction was illegal, and must be set aside.
In re Kharak Chand Pal, I. L. R., 10 Cal., 1030 (1884).
6o8 Supplementary Provisions. [Ch XLVl.
?u?fs'diot"ionS Th.e mere circumstance that a trying Magistrate is the master of the
whpre complain- complainant does not deprive the Magistrate of his jurisdiction, though it is
ant is his expedient that such a complaint should be referred to another Magistrate,
pnvite .errant. jn rg Bamp(lj L h R <j hom < m (1gg4) "*
^s'tmte-Sn-" Notwithstanding anything contained in section 555 of the Criminal Pro-

lnrieil officer of cedure, Code 1882, a conviction for an offence against any Municipal law or
Municipality, regulation, had before a Bench of Magistrates, which includes a salaried officer
disqualification of tl)C Municipality, js bad. Nohin Krishna Mmkerjee v. Ihe Chairman of the.
Suburban Municipality, I. L. R., 10 Cal., 194 (1883).
Poare-Ws-11* ^ i alleged to have carried on business in Calcutta without having taken
qualifying out a license under Bengal Act IV of 1876, was summoned at the instance of
inonîwed'at "ie Corporation by B, a servant of the Corporation, and also a Justice of the
instance of, and Peace. The case was subsequently heard by B, and it was shown that notice
determined by, 0f the assessment under class ii, schedule 3, had been duly served on A, and
prosecutor.' tnati though he then denied his liability to take out any license, and stated
that he carried on no business as alleged, he hud not appealed against the
assessment under section 79. It was further shown that the assessment had
been confirmed by the Chairman of the Corporation, but that the amount had
not been paid. A thereupon tendered evidence to show that he was not liable
to take out any license, but B refused to hear such evidence, and convicting
A, sentenced him to pay a 6nc. On an application, under the above circum
stances, to the High Court under section 147, Act X of 1875,—held, that the
finality of th-s decision of the Chairman referred to in section 79 has only re
ference to the class under which a particular person, who is admittedly bound
to take cut a license under section 75, should be assessed, and not to the case
where the liability to take out a license at all is denied, this being a question
which can only be determined judicially after taking evidence by a competent
Court in a prosecution under section 77, and that, therefore, the refusal of B
to hear the evidence tendered by A on this point was illegal. Held, also, that
the proceedings and ultimate conviction of A were illegal, inasmuch as B,
being a servant of the prosecutor, i.e., the Corporation, had such an interest as
might give him a bias in the matter, and that consequently he ought not to
have sat as Justice of the Peace, either at the granting or upon the hearing of
the summons. Wood v. The Corporation of the Town of Calcutta, I. L. B., 7
Cal., 322 (1881).
Offences against The Collector, being primarily responsible for the prosecution of offences
the stamp laws, against the Stamp Acts of 1869 and 1879, should not himself try, as a Magis
trate, a person accused of an offence against either of those Acts. Empress
of India v. Dcoki Natulan Lai, I. L. B., 2 All., 806 (1880).
Contempt of Where a Settlement-Officer, who wan also a Magistrate, summoned, as a

Court—Convic- Settlement-Officer, a person to attend his Court, and such psrson neglected to
SuMImS attend, and such officer, as a Magistrate, charged him with an offence under
his capacity of section 174 of the Penal Code, and tried and convicted him on his own
Magistrate. charge, held, that such conviction was with reference to sections 471 and 473
of the Code of Criminal Procedure, 1872, illegal. Empress of India v
Sukhari, I. L. B., 2 All., 405 (1879).
RtampAct- A Magistrate who has been authorised by the Collector of a district,

Magistrate an- under section 43 of the Stamp Act, to prosecute offenders against the stamp
prosecute, not laW8> is not competent also to try persons whom he prosecutes. The Collec-
to be ' the tor should appoint some person other than a Magistrate to conduct the prose-
Judge, cutions. The Empress v. Gauyadhur Bhunjo, I. L. B , 3 Cal., 622 (1878).
s. 556.] Supplementary Frovtsions. 609
It is illegal and ultra vires on the part of the Magistrate to revive before JJjf^^Jf?^^.'
himself criminal proceedings against an accused who has already been dis- va) 0f proceed-
charged under section 215 of the Criminal Procedure Code, 1872, where no iiigs- Evidence
further evidence is procurable than that which was before the Court on the competent'8-
first occasion. Per Markhy, J.—When the discharge has been improper, the witness,
only proper course open to a Magistrate is to report the case to the High
Court for orders, and that Court, if of opinion that the accused has been im
properly discharged, will order a re-trial. Per curiam.—A Magistrate cannot
himself be a witness ;n a case in which he is the sole judge of law and fact.
Per Markby, J. - Where in such a case he has given his evidence and convic
ted the accused, his having so acted makes the conviction bad. Per Prinskp,
J.—The conviction is not absolutely bad. It is open to the Court to uphold the
conviction, if it is of opinion that, after rejecting the Magistrate's evidence,
there is other evidence sufficient, if believed, to support the conviction. This
being a proceeding under section 297 of the Cone, the Court refused to go
into the evidence. The Empress v. Donnelly, I. L. R., 2 Cal., 405 (1877).
The jailor of a district jail being accused by one of the jail clerks of Kffeet'oTwaiver
falsifying his accounts and defrauding the Government, the matter was en- by prisoner—
quired into by the District Magistrate, and the jailor was, by the Magistrate's Disqualifyinn
order, placed on trial before a Bench of Magistrates, consisting of the District jud^-Judge0
Magistrate himself, L the officiating superintendent of the juil, and three giving evidence,
other Honorary Magistrates. The prisoner and his pleaders were alleged to
have stated before the commencement of the trial on being questioned that
had been framed , the prisoner's counsel objected to the Bench as formed.
The District Magistrate directed the Government Pleader to prosecute, and
the case for the prosecution was closed, two formal charges were drawn
up, namely, that the prisoner had debited Government with the price
of more oil-seeds than he actually purchased, and that he had received pay
ment for certain oil at higher rate than he credited to Government. The
moneys, the receipt of which were the subject of the first charge, were ob
tained by the prisoner on the strength of certain vouchers which he had in
duced L to sign as correct, and L had sanctioned the sale at the rates credited
to Government. Upon the prisoner's giving the names of the witnesses ho
intended to call in his defence, L was deputed by his brother Magistrates to
examine some of thorn who were connected with the jail, in order " to guard
against deviation," and the depositions so taken placed on the record, " to be
used by either party, though not themselves as evidence." The prisoner was
convicted. On amotion to (mash the conviction : Held, that L had a distinct
and substantial interest which disqualified him from acting as Judge. Held,
further, that although a Magistrate is not disqualified from dealing with a case
judicially merely because in his character of Magistrate, it may have been his
duty to initiate the proceedings, yet a Magistrate ought not to act judicially
in a case where there is no necessity for his doing so, and whore he himself
discovered the offence and initiated the prosecution, and where he is one of
the principal witnesses for the prosecution. Held, further, that the recording
the statements of the prisoner's witnesses was irregular. Criminal proceed
ings are bad unless they are conducted in the manner prescribed by law, and
if they are substantially bad, the defect will not be cured by any waiver or
consent of the prisoner. The Queen v. Bholanath Sen, I. L. B., 2 Cal., 23
(1876).
The Magistrate of the district should not himself try a case in which he DUlnalification
instituted the prosecution as Collector. TJie Queen v. Nadi Chand Poddar, 24 01 Ma«"trat<!-
W. R., 1 (1875).
39
6io Supplementary Provisions. [Ch. XLVI.
IMsnualiflcation Where a Magistrate took an active part in the prosecution of the prisoners,
to near appea . an(l re(.orcicj tnc evidence of the material witnesses preliminary to deciding
whether the case should go to trial or not, and by whom it should be tr'ed, it
was held that he was not a proper Court to hear the appeal from the convic
tion come to in the case. In re Het Lall Roy, 22 W. R , 75 (1874).
aeTnofto^tM 557. No ple ider who practises in the Court of any Magis-
SiitircourtV trateina presidency-town or district, shall sit as a Magistrate in
such Court or in any Court withia the jurisdiction of such Court.'
u°n™?iaêoJ°cide 558. The Local Government may determine what, For the
Courts. purposes of this Code, shall be deemed to be the language of each
Court within the territories administered by such Government,
other than the High Courts establishe 1 by Royal Charter.
vernor'o'eSfrai 595. All powers conferred by this Code on the Govern >r-
in council and General in Council or on the Local Government may bs exercised
ment' eiercTse- from time to time as occasion requires.
able from time
10 time- 560. A public servant having any duty to perform in c on-
cenied'inTaies necôn w^n the sale of any property un ler this Code shall not
not to purchase purchase or bid for the property.
or bid for pro-
perty— 561. (1) Notwithstanding anything in this Code, no Magis-
sions'wrth'res- trate except a Chief Presidency Magistrate or District Magistrat9
pect to offence shall
of rape by a hus
band.
(a) take cognizance of the offence of rape where the sexual
intercourse was by a man with his wife, or
{b) commit the man for trial for the offence :
(2) And, notwithstanding anything in this Code, if a Chief
Presidency Magistrate or District Magistrate deems it necessary
to direct an investigation by a police-oflieer with respect to such
an offence as is referrel to in sub-section (/ ), no police-officer of
a rank below that of police-inspector shall be employed either to
make, or to take part in, the investigation.
First Offenders.
Power to Court 562. In any cise in which a person is c mvicted of theft,
to reieaB6ofupon
probation «„.in a •building, dishonest
theft * • »
misappropriation, 1 **
cheating, or any
frateadof w- other offence under the Indian Penal Coda punishable with not
JSSSSf^Srt. more than two years' imprisonment before any Cou. t, and no
previous conviction is proved against him, if it appears to the
Court before whom ha is so convicted, that, rJgard b3ing hid to
the youth, character and antecedents of the offender, to the trivial
nature of the offence and to any extenuating circumstances un ler
which the offence was committed, it is expedient that the offender
be released on probation of good c mducfc, the Court may, instea I
of sentencing him at onca to any punishment, direct that he be
released on his entering into a bond, with or without sureties, and

during such period (not exceeding one year) as the Court may
direct, to appear and receive sentence when called upon, and in
the meantime to keep the peace and be of good behaviour :
Provided that, where any first offender is convicted by a Ma
gistrate of the third class, or a Magistrate of the second class not
specially empowered by the Local Government in this behalf, and
the Magistrate is of opinion that the powers conferred by this
section should be exercised, he shall record his opinion to that
effect and submit the proceedings to a Magistrate of the first class
or Subdivisional Magistrate, forwarding the accused to, or taking
bail for hi3 appearance before, such Magistrate, who shall dispose
of the cuse in manner provided by section 380.
563. {1) If the Court which convicted the offender, or a ^j,"fio"neilde"

Court which could hive dealt with the offender in respect of his failing to ob-
original offence, is satisfied that the offender has failed to observe of'hls^rec'oKn!-
any of the conditions of his recognizance, it may issue a warrant »»<*«■
for his apprehension.
(2) An offender, when apprehended on any such warrant,

shall be brought forthwith before the Court issuing the warrant,
and such Court may either remand him in custody until the case
is heard or admit him to bail with a sufficient surety conditioned
on his appearing for sentence. Such Court m ly, after hearing
the case, pass sentence.
564- (1) The Court, before directing the release of an ^>ndai^j'9" "
offender under section 562, shall be satisfied that the offender or offender,
his surety (if any) has a fixed place of abode or regular occupa
tion in the place for which the Court acts or in which the offen
der is likely to live during the period named for the observance
of the conditions.
(2) Nothing in this section or in sections 562 and 563 shall

affect the provisions of section 3 1 of the Reformatory Schools
Act* 1897.
Preciously Convicted Offenders.
565. {1) When any person, having been convicted of any order tor i.oti-
offence punishable under Chapter XII or Chapter XVII of the prcTi0"u^con'
Indian Penal Code with imprisonment for a term of three years victed offender!
or upwards, is again convicted of any offence punishable under
either of those Chapters with imprisonment for a lerm of three
ye.irs or upwards by a High Court, Court of Session, Presidency
• No. VIII of 1897.
6l2 Supplementary Provisions. [Ch. XLVI.
Magistrate, District Magistrate, Subdivisional Magistrate, or any

Magistrate of the first class specially empowered by the Local
Government in this behalf, such Court or Magistrate may, if it
or he thinks fit at the time of passing sentence of transportation
or imprisonment on such person, also order that his residence and
any change of residence after release be notified, as hereinafter
provided, for a term not exceeding five years from the date of the
expiration of such sentence.
(2) If such conviction is set aside on appeal or otherwise,
such order shall become void,
(3) The Local Government, with the previous sanction of the
Governor-General in Council, may make rules to cuny out the
provisions of this section relating to the notification of residence
by released convicts.
(4) Any person refusing or neglecting to comply with any
rule so made shall be punishable as if he had committed an
offence under section 176 of the Indian Penal Code.
Schedule I. 613
ENACTMENTS REPEALED.
{See section 2.1
Year. No. Short title or subject. Extent of repeal.
1875 X High Courts' Criminal Procedure The whole.

1882 X The Code of Criminal Procedure, The whole.
1882.
1884 III The Criminal Procedure Code The whole.
Amendment Act. 1884.
1886 X Amending the Code of Criminal Sections 1 to 19 (both inclu
Procedure, 1882, and certain sive).
other Acts.
1887 V Amending the Code of Criminal The whole.
Procedure, 1882.
I XIV The Indian Marine Act, 1887 ... Section 78.
1889 I The Metal Tokens Act, 1889 ... Section 7.
V Abolishing the office of Coroner Section 4, sub-section (/).
of Madras.
XI The Lower Burma Courts Act, So much of the second sche
1889. dule as relates to the Code
of Criminal Procedure, 1882.
I XIII The Cantonments Act, 1889 ... So much of the schedule as
relates to the Code of Cri
minal Procedure, 1882.
1891 III Amending the Indian Evidence Section 9.
Act, 1872, and the Code of Cri
minal Procedure, 1882.
IV Amending the Code of Criminal The whole.
Procedure, 1882.
X Amending the Indian Penal Sections 2 and 3.
Code and the Code of Criminal
Procedure, 1882.
XII The Repealing and Amending So much as relates to the
Act, 1891. Code of Criminal Proce
dure, 1882.
1894 III Amending the Code of Criminal Sections 1 to 4 (both inclu
Procedure, 1882, and the Indian sive).
Penal Code.
M X Amending the Code of Criminal The whole.
Procedure, 1882.
1895 IV Amending sections 366 and 371 The whole.
of the Code of Criminal Pro
cedure, 1882.
1896 XIII Amending the Code of Criminal The whole.
Procedure, 1882.
614 Sche
TABULAR STATE
Explanatory Note.—The entries in the second and seventh columns
the Indian Penal Code," are not intended as definitions of the offences and
Penal Code, or even as abstracts of those sections, but merely 43 references
The third column of this schedule applies also to the police in the towns
CHAPTER V.—
1 2 3 4
Whether the Whether a war

Section. Offence. police may arreBt rant or a summons
shall ordinarily
without warrant issue in the
or not. first instance.
109 Abetment of any offence, if May arrest with According as a

the act abetted is committed out warrant if warrant or sum
in consequence, and where arrest for the mons may issue
no express provision is made offence abetted for the offence
for its punishment. may be made abetted.
without war
rant, but not
otherwise.
110 Abetment of any offence, if Ditto Ditto
the person abetted does the
act with a different intention
from that of the abettor.
111 Abetment of any offence, Ditto Ditto
when one act is abetted and
a different act is done ; sub
ject to the proviso.
113 Abetment of any offence, Ditto Ditto
when an effect is caused by
the act abetted different
from that intended by the
abettor.
114 Abetment of any offence, if Ditto ... Ditto
abettor is i resent when of
fence is committed.
115 Abetment of an offe nee, Ditto Ditto
punishable with death or
transportation for life, if
the offence be not commit
ted in consequence of the
abetment.
If an act which causes harm Ditto «. Ditto
be done in consequence of
the abetment.
dule II. 615
MENT OF OFFENCES.
of this schedule, headed respectively " Offence " and " Punishment under
punishments described in the several corresponding sections of the Indian
to the subject of the section, the number of which is given in the first column.
of Calcutta and Bombay.
ABETMENT.
5 6 7 8
Whether bail Whether Punishment under the By what Court

able or not. compoundable Indian Penal Code. triable.
or not.
According as According as The same punishment as The Court by

the offence the offence for the offence abetted. which the
abett e d is abet ted is offence abetted
b a i lable or c 0 111 p ound- is triable.
not nble or not.
Ditto Ditto Ditto Ditto.
Ditto Ditto The same punishment as Ditto.

for the offence inten
ded to be abetted.
Ditto Ditto The same punishment as Ditto.

for the offence com
mitted.
Ditto Ditto Ditto ,., Ditto.
Not bailable... Ditto Imprisonment of either Ditto.

description for 7 years
and tine.
Ditto Ditto Imprisonment of either Ditto.

1
and fine.
616 Schedule
CHAPTER V.—ABET
1 2 • 4
Whether a war
Whether the police rant
may arrest with shallor aordinarily
summons
8ection. Offence. out warrant issue in the
116 Abetment of an offe nee, May arrest with According as a

panisliable with imprison out warrant if warrant or sum
ment, if the offence be not arrest for the mons may issue
committed in consequence offence abetted for the offence
of the abetment. may be made abetted.
without ■ war
rant, but not
otherwise
If the abettor or the person Ditto Ditto
abetted lie a public servant
whose duty it is to prevent
the offence.
117 Abetting the commission of Ditto Ditto

an offence by the public, or
by more than ten persons.
118 Concealing a design to com Ditto Ditto
mit an offence punishable
with death or transporta
tion for life, if the offence
be committed.
If the offence be not com Ditto Ditto
mitted.
119 A public servant concealing Ditto Ditto

a design to commit an of
fence which it is his duty
to prevent, if the offence be
committed.
If the offence be punishable Ditto Ditto

with death or transportation
for life.
If the offence be not commit Ditto Ditto
ted.
II —continued. 617
MENT—continued.
5 6 7 8

able or not. coinpoundable Indian Penal Code. triable.
or not.
According aR According as Imprisonment extending The Court by

the offence the offence to a quarter part of the which the of
abe tted is abetted is longest term, and of fence abetted
bailable o r con'pou n d - any description, pro is triable.
not. able or not. vided for the offence,
or fine, or both.
Ditto Ditto Imprisonment extending Ditto.

to half of the longest
term, and of any des
cription, provided for
the offence, or fine, or
both.
description for 3 years,
or tine, or both.
Not bailable .. Ditto Imprisonment of either Ditto.
and fine.

and fine.
According as Ditto Imprisonment extending Ditto.
the offence to half of the longest
abe tted is term, and of any des
bailable or cription, provided for
not. the offence, or fine, or
both.
Not bailable .. Ditto Imprisonment of either Ditto.
descr i p t i o n for ten
years.
According as Ditto Imprisonment extending Ditto.
the offence to a quarter part of the
abetted is longest term, and of
bailable or any description, provi
not ded for the offence, or
line, or both.
6i8 Schedule
CHAPTER V.—ABET
„., ,. QrWhether a warrant

Whether the police a smnmons sha„
inuv arrest
may arrpsir. with
wir.h- ! ordinarily issue
Section Offence. out warrant in the first
or not instance.
120 Concealing a design to com May arrest with According as a

mit an offence punishable out warrant if warrant orsum-
with imprisonment, if the arrest for the nions may issue
offence be committed. offence abetted for the offence
may be made abetted.
without war
rant, but not
otherwise.
If the offence be not commit Ditto Ditto
ted.
CHAPTER VI.- OFFENCES
121 Waging or attempting to Shall not arrest Warrant •••

wage war, or abetting the without war-
waging of war, against the rant.
Queen.
121A Conspiring to commit certain Ditto ... Ditto kaa
offences against the State.
122 Collecting arms, etc., with the Ditto ... Ditto ■••
intention of waging war
against the Queen.
123 Concealing with intent to Ditto ••■ Ditto ...

facilitate a design to wage
war
124 Assaulting Governor-General, Ditto ■•* Ditto
Governor, etc., with intent
to compel or restrain the
exercise of any lawful
power.
MENT—concluded.
5 6 7 8
Whether bail Whether com- Punishment under the By what Court

able or not. poundable Indian Penal Code. triable.
or not.
According as According as Imprisonment extending The Court by

the offence the offence to a quarter part of the which the of
abetted is abetted is longest term, and of fence abetted
bailuble or com pound- any description, pro is triable.
not. able or not. vided for the offence,
or fine, or both.
Ditto .. Ditto ... Imprisonment extending Ditto.

to one-eighth part of the
longest term, and of
the description, provi
ded for the offence, or
fine, or both.
AGAINST THE STATE.
Not bailable. Not compound- Death, or transportation Court of Session.

able. for life, and forfeiture
of property.
Ditto ... Ditto ... Transportation for life Ditto.

or any shorter term,
or imprisonment of
either description for
10 years.
Ditto ... Ditto ... Transportation for life, Ditto.
or imprisonment of
10 years, and forfei
ture of property.
Ditto ... Ditto ... Imprisonment of either Ditto.
description for ton years
and fine
and fine.
1
620 Schedule
CHAPTER VI.—OFFENCES
1 2 3 4
Whether the po Whether a war

lice may arrest rant or a sum
Section. Offence. without war mons shall ordi
rant or not. narily issue in the
first instance.
124A Sedition Shall not arrest Warrant

without v ar
rant.
125 Waging war against any Ditto Ditto

Asiatic Power in alliance or
at peace with the Queen, or
abetting the waging of such
war.
126 Committing depredation on Ditto Ditto

the territories of any Power
in alliance or at peace with
the Queen.
127 Receiving property taken by Ditto Ditto

war or depredation mention
ed in sections 125 and 126.
128 Public servant voluntarily Ditto Ditto

allowing prisoner of State
or war in his custody to
escape.
129 Public servant negligently Ditto Ditto

suffering prisoner of State
or war in his custody to
escape.
130 A iding escape of, rescuing or Ditto Ditto

harbouring, such prisoner, or
offering any resistance to the
recapture of such prisoner.
tl — continued. 621
AGAIXST THE STATE—continued.
5 6 7 8
Whether Vy what Court

Whether bail compoundable Punishment under the
Indian Penal Code. triable.
able or not. or not.
Not bailable.. Not compound- Transportation for life or Court of Session,

able. for any term and tine, Chief Presiden
or imprisonment of cy Magistrate
either description for 3 or District Ma
years and tine, or tine. gistrate or Ma
gistrate of the
first class spe
cially empow
ered by the Lo
cal Government
in that behalf.
Ditto ... Ditto ... Transportation for life Court of Session.

and fine, or imprison
ment of either descrip
tion for 7 years and
fine, or fine.
Ditto Ditto ... Imprisonment of either Ditto.

and fine, and forfeiture
of certain property.
Ditto ... Ditto ... Ditto Ditto
Ditto Ditto Transportation for life, Ditto.

or imprisonment of
10 years, and fine.
Bailable Ditto ... Simple imprisonment for Court of Sessioa,

3 years and fine. Presidency Ma
gistrate or Ma
gistrate of the
first class.
Not bailable... Ditto ... Transportation for life, Court of Session.

or imprisonment of
10 years, and fine.
622 Schedule
CHAPTER VII.—OFFENCES RELAT
1 2 3 4

Section. police may arrest rant or a sum
mons shall
Offence. without warrant ordinarily
or not. issue in
the first instance.
131 Abetting mutiny, or attempt May arrest with Warrant

ing to seduce an officer, out warrant.
soldier or sailor from his
allegiance or duty.
132 Abetment of mutiny, if mutiny Ditto Ditto ...
is committed in consequence
thereof.
133 Abetment of an assault by an Ditto Ditto

officer, soldier or sailor on
his superior officer, when in
the execution of his office.
134 Abetment of such assault, if Ditto Ditto

the assault is committed.
135 Abetment of the desertion of Ditto ••• Ditto

an officer, soldier or sailor.
136 Harbouring such an officer, Ditto Ditto k,.

soldier or sailor who has
deserted.
137 Deserter concealed on board Shall not arrest Summons ...
merchant-vessel, through without w ar -
negligence of master or per rant.
son in charge thereof.
138 Abetment of act of insub May arrest with Warrant
ordination by an officer, sol out warrant.
dier or sailor, if the offence
be committed in conse
quence.
140 Wearing the dress or carrying Ditto Summons
any token used by a soldier,
with intent that it may be
believed that he is such a
soldier.
ll —continued. 623
INTG TO THE ARMY AND NAVY.
5 6 7 8

able or not. compoundublc Indian Penal Code. triable.
or not.
Not bailable ... Not compound Transportation for life or Court of Session.
able. imprisonment of either
and line.
Ditto Ditto Death, or transportion for Ditto.
life, or imprisonment of
either description for 10
years and fine.
Ditto Ditto Imprisonment of either Court of Session,
description for 3 years Presidency Ma
and fine. gistrate or Ma
gistrate of the
first class.
Ditto Ditto ... Imprisonment of either Court of Session.
and tine
Bailable Ditto . .. Imprisonment of either Presidency M a-
description for 2 years, gistrate or Ma
or line, or both. gistrate of the
first or second
class.
Ditto Ditto Ditto ... Ditto.
Ditto Ditto Fine of 500 rupees Ditto.
Ditto Ditto Imprisonment of cither Ditto. .

description for (! months,
or tine, or both.
Ditto Ditto Imprisonment of either Any Magistrate.

d e s c r i p tion for 3
months, or tine of 500
rupees, or both.
624 Schedule
CHAPTER VIII.—OFFENCES AGAISST
1 2 3 4
Whether the police Whether a warrant

Section. Offence. may arrest with orordinarily
a summons shal
issue
out warrant
or not. in the first
instance.
143 Being member of mi unlawful May arrest with Summons

assembly. out warrant.
144 Joining an unlawful assembly Ditto Warrant

armed with any deadly
weapon.
145 Joining or continuing in an Ditto Ditto
unlawful assembly, knowing
that it has been commanded
to disperse.
147 Rioting Ditto Ditto
148 Rioting, armed with a deadly Ditto Ditto
weapon.
149 If an offence be committed by According as ar According as a

any member of an unlawful rest 111 ay be warrant or sum
assembly, every other mem made without mons may issue
ber of such assembly shall warrant for the for the offence.
be guilty of the offence. offence or not.
160 Hiring, engaging or employ May arrest with According to the
ing persons to take part in out warrant. offence commit
an unlawful assembly. ted by the per
son hired, en
gaged or em
ployed.
151 Knowingly joining or conti Ditto Summons
* nuing in any assembly of
jive or more persons after
it has been commanded to
disperse.
152 Assaulting or obstructing pub Ditto Warrant
lic servant when suppressing
riot, etc.
tl—continued. 625
THE PUBLIC TRANQUILLITY.
5 6 7 8
Whether bail Whether com-

poundable Punishment under the By what Court
able or not. Indian Penal Code. triable.
or not.
Bailable Not com- Imprisonment of eithe r Any Magistrate.

poundable. description for 6 months
or tine, or both.
or fine, or both.

description for 3 years, Presidency Ma
or fine, or both. gistrate or Ma
gistrate of the
first class.
According a 8 Ditto The same as for the The Court by
the offence is offence. which the of
bailable 0 r fence is triable.
not.
Ditto Ditto The same as for a mem Ditto.

ber of such assembly,
and for any offence
committed by any mem
ber of such assembly.
Builnble Ditto Imprisonment of either Any Magistrate.

description for 6
months, or fine, or both.
Ditto Ditto Imprisonment of either Dourt of Session,

gistrate of the
first class.
40
626 Schedule
CHAPTER VIII.—OFFENCES AGAINST

police u ay arrest rant or a sum
mons shall
Offence without warrant ordinarily issue in
or not. the first instance
Wantonly giving provocation May arrest with Warrant

with intent to cause riot, if out warrant.
rioting be committed.
If not committed Ditto Summons
Promoting enmity between Shall not arrest Warrant

classes. without warrant.
Owner or occupier of land not Ditt« Summons

giving information of riot,
etc.
Person for whose benefit Ditto Ditto

or on whose behalf a riot
takes place not using all
lawful means to prevent it.
Agent of owner or occupier I itto Ditto
for whose benefit a riot is
committed not using all law
ful means to prevent it.
Harbouring persons hired for May arrest with Ditto
an unlawful assembly. out warrant
Being hired to take part in Ditto Ditto

an unlawful assembly or
riot.
Or to go armed Ditto Warrant
Committing affray Shall not arrest Summons

without warrant.
THE PUBLIC TRANQUILLITY—concluded.
5 7 8
Whether bail Whether Punishment unJer the By what Court

able or not. uompoandable Indian Penal Code. triable.
or not.
Bailable Notcompounl- Impris iniuent of either Any Magistrate.

able. description for 1 year,
or tine, or both.
Ditto Ditto Imprisonment of either 1 itto.
description for 0
months, or line, or
both.
Not bailable .. Ditto Imprisonment of cither Presidency Ma
or tine, or both. gistrate of the
first class.
Bailable Dittj Fine of 1,000 rupees ... Presidency Ma
gistrate or Ma
gistrate of the
rirst or second
class.
Ditto Ditto Fine Ditto.

description for (>
months, or line, or both.

or line, or both.
description for 1 month,
or tine of 100 rupees,
or both.
628 Schedule
CHAPTER IX.—OFFENCES BY OR RELAT
1 2 3 4
Whether the or Whether a warranl

a summons shal
police may arrest ordinarily
Section. Offence. without wan-ant issue
instance.
161 Being or expecting to be a Shall not arrest Summons ...

public servant, ami taking a without war
gratification otber than legal rant.
remuneration in respect of
an official act.
162 Taking a gratification in Ditto Ditto

order by corrupt or illegal
means to influence a public
servant.
163 Taking a gratification for the Ditto Ditto
exercise of personal influence
with a public servant.
164 Abetment by public servant Ditto Ditto

of theoffencesdetined in the
last two preceding clauses
with reference to himself
165 Public servant obtaining any Ditto Ditto

valuable thing, without con
sideration, from a person
concerned in any proceeding
or business transacted by
such public servant.
166 Public servant disobeying a Ditto Ditto

direction of the law with in
tent to cause injury to any
person.
167 Public servant framing an in Ditto Ditto
correct document with intent
to cause injury.
168 Public servant unlawfully en Ditto Ditto

gaging in trade.
II— continued.
ING TO PUBLIC SERVANTS.
5 6 7 8

or not.
Bailable Not compound- Imprisonment of either Court of Session,

able. description for 3 years, Presidency Ma
gistrate of the
first class.
Ditto Ditto Simple imprisonment for Presidency Ma

1 year, or line, or both. gistrate or Ma
gistrate of the
first class.
gistrate of the
first class.
2 years, or fine, or both. gistrate or Ma
gistrate of the
first or second
class.
Ditto Ditto Simple imprisonment for Ditto.

1 year, or fine, or both.

gistrate of the
first class.
1 year, or fine, or both. gistrate or Ma
gistrate of the
first class.
630 Schedule
CHAPTER IX.—OFFENCES BY OP> RELAT
1 2 A 4
Whether a warrant
Whether the police or u summons shall
may arrest with ordinarily issue
Section. (.'ffence. out warrant in the lirat in
or not. stance.
169 Public servant unlawfully Shall not arrest Summons

buying or bidding for pro without war
perty. rant
170 Personating a public servant May arrest with Warrant

out warrant.
171 Wearing garb or carrying Ditto Summons

token used by public ser
vant with fraudulent intent.
CHAPTER X.—CONTEMPTS OF THE LAWFUL
not arrest Sun mons

172 Abscon ling to avoid service Shall
without war
of summons or other pro
ceeding from a public ser rant.
vant.
If summons or notice require Ditto Ditto
attendance in person, etc.,
in a Court of Justice.
Ditto Ditto
173 Preventing the service or the
affixing of any summons or
notice, or the removal of it
when it has been affixed, or
preventing a proclamation.
If summons, etc., require Ditto Ditto

attendance in person, etc.,
in •< Court of Justice.
Ditto Ditto
174 Not obeying a legal order to
attend at a certain place in
person or by agent, or de
parting therefrom without
authority.
If the order require personal Ditto Ditto
attendance, etc., in a Court
of Justice.
II— continued. 631
[NO TO PUBLIC SERVANTS—<w/w/«/.
5 6 7 8
# •
Whether bail- Whether Punishment under the

compoundahle By what Court
nble or not. or not. Indian Penal Code triable.
Bailable Not compound- Simple imprisonment for Presidency Ma

alile. 2 years, or fine, or both, gistrate or Ma
and confiscation of pro gistrate of the
perty, if purchased. first class.
or fine, or both.
description for 3
months, or fine of 200
rupees, or both.
AUTHORITY OF PUBLIC SERVANTS.
Bailable Not compound- Simple imprisonment for Any Magistrate.

able. 1 month, or fine of 500
rupees, or both.

6 months, or fine of
1,000 rupees, or both.
1 month, or fine of 500 gistrate or Ma
rupees, or both. gistrate of the
first or second
class.
Ditto Ditto Simple imprisonment for . Ditto.

6 months, or fino of
Ditto Ditto Simple imprisonment for Any Magistrate.
1 month, or fine of 500
rupees, or both.

632 Schedule
X • 2 3 4
Whether the Whether a warrant

police may arrest orordinarily
a summons shall
Section. Offence. without wan-ant in the firstissue
in
or not. stance.
175 Intentionally omitting to Shall not arrest Summons

produce a document to a without war
public servant by a person rant.
legally bound to produce or
deliver such document.
If the document is required Ditto Ditto

to be produced in or
delivered to a Court of Jus
tice.
176 Intentionally omitting 1 0 Ditto Ditto

give notice or information
to a public servant by a per
son legally bound to give
such notice or informa
tion.
If the notice or information Titto Ditto

required respects the com
mission of an offence,
etc.
177 Knowingly furnishing false Ditto ... Ditto

information to a public ser
vant.
If the information required Ditto ... Ditto

respects the commission of
an offence, etc.
II — continued. 633
AUTHORITY OF PUBLIC SERVANTS—continued.
5 6 7 8

or not.
Bailable ... Not compound- Simple imprisonment for The Court in

able. 1 month, or fine of 500 which the of
rupees, or both. fence is com
mitted, subject
to the provi
sions of Chap
ter XXXV ; or,
if not commit
ted in a Court,
a Presidency
Magistrate or
Magistrate of
the first or
second class.


1 month, or fine of 500 gistrate or Ma
rupees, or both. gistrate of the
first or second
class.
Ditto Ditto ... Simple imprisonment for Ditto.

6 months, or fi n e of

or fine, or both.
634 Schedule
CHAPTER X.—COXTE.IPTS OF THE LAWFUL
1 2 3 4.

may arrest with >rordinarily
a summons shall
issue
Section. Offence. out warrant
or not. in the first in
stance.
178 Refusing oath when duly re Shall not arrest Summons

quired to t;ike oath by a without war
public nervant. rant.
179 P-eing legally bound to state Ditto Ditto

truth, and refusing to an
swer questions.
180 Refusing to sign a statement Ditto Ditto
made to a public servant
when legally required to do
so.
181 Knowingly stating to a public Ditto Warrant
servant on oath as true that
which is false.
182 Giving false information to Ditto Summons

a public servant in order
to cause him to use his
lawful power to the injury
or annoyance of any per
son.
183 Resistance to the taking Ditto Ditto
of property by the law
ful authority of a public
servant.
184 Obstructing sale of property Ditto Ditto
offered for Bale by authority
of a public servant.
\\--'CO)itimted. 635
AUTHORITY OF PUBLIC SERVANTS—conf-mml.
5 C 7 M
Whether bail Whether Punishment under tlie By what Court

compoundahle Indian Penal Code. triable.
Bailable Sot componnd- Simple imprisonment for The Court in

nble. 6 months, or ti n e of which the of
1,000 rupees, or both. fence is com
mitted, subject
to the provi
sions of Chap
ter XXXV ; or,
if not commit
ted in a Court,
a Presidency
Magistrate or
Magistrate of
the first or
second class.
Ditto Ditto Ditto.

Ditto
Ditto Simple imprisonment for Ditto.

Ditto 3 months, or tine of 500
rupees, or both.

nnd fine. gistrate or Ma
gistrate of the
first class.
Ditto Ditto Imprisonment of either Presidency Ma

description for 6 months, gistrate or Ma
or tine of 1,000 rupees, gistrate of the
or both. first or second
class.
Ditto Ditto.
Ditto Ditto
Imprisonment of either Ditto.

Ditto Ditto description for 1 month,
or tine of 500 rupees, or
both.
636 Schedule
1 2 3 4

police may arrest rant or a sum
Section. Offence. without warrant mons shall ordi
or not. narily issue in
the first instance.
186 Bidding, by a person under a Shall not arrest Summons

legal incapacity to purchase without war-
it, for property at a lawfully rent.
authorised sale, or bidding
without intending to perform
the obligations incur red
thereby.
186 Obstructing public servant in Ditto Ditto
discharge of his public
functions.
187 Omission to assist public ser Ditto Ditto

vant when bound by law to
give such assistance.
Wilfully neglecting to aid a Ditto Ditto
public servant who demands
aid in the execution of pro
cess, the prevention 0 f
offences, etc.
188 Disobedience to an order Ditto Ditto
lawfully promulgated by a
public servant, if such dis
obedience causes obstruc
tion, annoyance or injury
to persons lawfully em
ployed.
If such disobedience causes Ditto Ditto
danger to human life, health
or safety, etc.
189 Threatening a public servant Ditto Ditto

with injury to him, or one
in whom he is interested, to
induce him to do or forbear
to do any official act
190 Threatening any person to Ditto Ditto
induce him to refrain from
making a legal application
for protection from injury.
tl — continued.
AUTHORITY OF PUBLIC SERVANTS—concluded.
5 6 7 8
Whether Whether
bailable or compoundable Punishment under the By what Court
not. or not. Indian Penal Code. triable.
Bailable Not coiiipound Imprisonment of either Presidency Magis

able. description for 1 month, trate or Magis
or tine of 200 rupees, or trate of the first
both. or second class.
Ditto Ditto Imprisonment of cither Ditto.

description for 3 months,
or fine of 500 rupees, or
both.
Ditto Ditto Simple imprisonment for Ditto'
1 month, or tine of 200
rupees, or both.
Ditto Ditto Simple imprisonment for Ditto1
6 months, or tine of 500
rupees, or both.
Ditto Ditto Simple imprisonment for

1 month, or fine of 200 DittoJ
rupees, or both.

descript ion for 6
months, or tine of 1,000
rupees, or both.
or tine, or both.
Ditto Ditto Imprisonment of either Ditto

description for 1 year,
or tine, or both.
638 Schedule
CH YPTEU XI.— FALSE EVIDENCE AND
1 •2 3 *
Whether a warrant
Whether the police or
may arrest with a summons shall
Section. Offeuce. out warrant ordinarily issue
instance.
V.c, Giving or fabricating false Shall not arrest Warrant —

evidence in a judicial pro without war-
ceeding. rant.
Giving or fabricating false Ditto Ditto ...

evidem-e in anv other case.
m Giving or fabricating false Ditto ... Ditto

e v i d ence with intent to
cause any person to be con
victed of a capital offence
If innocent person be thereby Ditto Ditto
convicted and executed.
195 Giving or fabricating false Ditto ... Ditto ...
evidence with intent to pro
cure conviction of an offence
punishable with transporta
tion for life or with impri
sonment for seven years or
upwards.
1!>G Using in a judicial proceed Ditto Ditto
ing evidence known to be
false or fabricated.
•
197 Knowingly issuing or signing Ditto Ditto ...

a false certificate relating to
any fact of which such
certificate is by law admis
sible in evidence.
108 Using as a true certificate one Ditto ... Ditto
known to be false in a mate
rial point.
199 False statement made in any Ditto ... Ditto
declaration which is by law
receivable as evidence
200 Using us true any such de Ditto ... Ditto
claration known to hi> false.
OFFENCES AGAINST PUBLIC! JUSTICE.
5 6 7 8
Whether bail Whether eom- Punishment under the By what Court

able or nut. poumlable Indian Penal Code. triable.
or not.
Bailable Not eo 111- Imprisonment of either Court of Session,

poundablc. description for 7 years, Presidency Ma
and tine. gistrate or Ma
gistrate of the
tirst class.
and tine.
Not bailable... Ditto Transportation for life, Court of Session.
or rigorous imprison
ment for 10 years and
tine.
Ditto Ditto Death or as above Ditto.
Bailable Ditto ... The same as for the Court ofSession.

offence.
According as Ditto The same as for giving Court of Session,

the offence of or fabricating false evi Presidency Ma
giving Midi dence. gistrate or Ma
evidence is gistrate of the
b lilable or not. tirst class.
Bailable Ditto The same as for giving Ditto.
false evidence.
Ditto Ditto Ditto Ditto

640 Schedule
CHAPTER XL—FALSE EVIDENCE AXD
1 -2 3 4

or a summons
police may arrest shall
Section. Offence. ordinarily
without warrant issue in the first
or not. instance.
201 Causing disappearance of Shall not arrest Warrant

evidence of an offence com without war-
mitted, or giving false in rent.
formation touching it to
screen the offender, if a |
capital offence.
If punishable with transpoit- Ditto Ditto
ation for life or imprison
ment for 10 years.
If punishahlc with less that) Ditto Ditto

10 years' imprisonment.
202 Intentional omission to give Ditto Summons

information of an offence
by a person legally bound
to inform.
203 Giving false information res Ditto Warrant

pecting an offence com
mitted.
204 Secreting or destroying any Ditto ... Ditto
document to prevent its pro
duction as evidence.
205 False personation for the Ditto ... Ditto

purpose of any act or pro
ceeding in a suit or criminal
prosecution, or for becom
ing bail or security.
206 Fraudulent removal or con Ditto ... Ditto
cealment, etc., of property
to prevent its seizure as a
forfeiture, or in satisfaction
of a fine under sentence, or
in execution of a decree.
OFFENCES AGAINST PUBLIC JVSTICE-contiuued.
5 6 7 8
Whether Whether Punishment under the

compoundable By what Court
bailable or not. or not. Indian Penal Code. triable.
Bailuble Not compound- Imprisonment of either Court of Session.

able. description for 7 years
and fine.

description for 3 years Pres i d e n c y
and fine. Magistrate or
Magistrate of
the first class.
Ditto Ditto Imprisonment for a Presidency Ma
quarter of the longest gistrate or Ma
term, and of the des gistrate of the
cription, provided for first class, or
the offence, or fine, or Court by which
both. the offence is
triable.
description for fi months, gistrate or Ma
or fine, or both. gistrate of the
first or second
class.
or fine, or both.
Ditto Ditto Ditto Presidency Ma
gistrate or Ma
gistrate of the
first class.
description for 3 years, Pres i d e n'c y
or fine, or both. Magistrate or
Magistrate of
the first class.
Ditto Ditto Imprisonment of cither Presidency Ma
first or second
class.
41
642 Schedule
CHAPTER XL—FALSE EVIDENCE AND
1 2 3 4
Whether a war
Whether the rant or a sum
Section. Offence. police may arrest mons shall or
without warrant dinarily issue
instance.
207 Claiming property without Shall not arrest Warrant
right, or practising decep without war
tion touching any right to rant.
it, to prevent its being
taken as a forfeiture, or in
satisfaction of a fine under
sentence, or in execution of
a decree.
208 Fraudulently suffering a Ditto Ditto
decree to pass for a sum not
due, or suffering decree to
be executed after it has
been satisfied.
209 False claim in a Court of Ditto Ditto
Justice.
210 Fraudulently obtaining a Ditto Ditto

decree for a sum not due, or
causing a decree to be
executed after it has been
satisfied.
211 False charge of offence made Ditto Ditto
with intent to injure.
If offences charged be punish Ditto ... Ditto
able with imprisonment for
seven years or upwards.
If offence charged be capital, Ditto Ditto

or punishable with trans
portation for life.
212 Harbouring an offender, if May arrest with Ditto
the offence be capital. out warrant.
If punishable with transport Ditto Ditto

ation for life, or with im-
prin-ninent 1 >r 10 years.
OFFENCES AGAINST PUBLIC JUSTICE—continued.
5 6 7 8
Whether Whether Punishment under the By what Court

bailable or compoundable. Indian Penal Code. triable.
not. or not.
Bailable Vot compound- Imprisonment of either Presidency Ma

able. description for 2 years, gistrate or Ma
first or second
class.
Ditto ... Ditto Ditto Presidency Ma

gistrate or Ma
gistrate of tho
first class.

and fine.
or fine, or both.

gistrate of the
first class.
Ditto Ditto Ditto Court of Session.

description for 5 years Pre s i d e n c y
Magistrate of
the first class.
and fine.
644 Schedule
CHAPTER XI.—FALSE EVIDENCE AND
1 2 3 4
Whether a
Whether the po warrant or a
Section. Offence. lice may arrest summons shall
without war ordinarily issue
rant or not. in the first in
stance
If punishable with imprison May arrest with Warrant
ment for one year and not out warrant
for 10 yearn.
213 Taking gift, etc., to screen an Shall not arrest Ditto

offender from punishment, without war
if the offence be capital. rant.
If punishable with transporta Ditto Ditto
sonment for 1U years.
If with imprisonment for less Ditto Ditto

than 10 years.
214 Offering gift or restoration of Ditto Ditto

property in consideration of
screening offender, if the
offence be capital.
If punishable with transporta Ditto Ditto

sonment for 10 years.

than 10 years.
II —continued.
OFFENCES AGAINST PUBLIC JU8TlCE-co,itinued.
5 6 7 8
Whether Whether
not. or not. Indian Penal Code. trioble.
Bailable | Not compound

- Imprisonment for a quar Presidency Ma
able. ter of the longest term, gistrate or Ma
and of the description, gistrate of the
provided for the off first class, or
ence, or fine, or both. Court by which
the offence is
triable.
Ditto Ditto Imprisonment of either Court of Session.
and fine.
Ditto Pitto Imprisonment of either Court of Session,
description for 3 years Presidency
Magistrate of
tho first class.
Ditto ,„ Ditto Imprisonment for a quar Presidency Ma
ter of the longest term, gistrate or Ma
provided for the offence, first class, or
or tine, or both. Court by which
the offence is
triable.
Ditto ... Ditto Imprisonment of either Court of Session.

and fine.

description for 3 years P r e m i d ency
Magistrate of
the first class.
Ditto ... Ditto Imprisonment for a quar Presidency Ma

provided for the offence, first class, or
or fino, or both. Court by which
the offence is
triable.
646 Schedule
1 2 3 4
Whether a war-
Whether the ■ant or a summons
Section. police may arrest shall ordinarily
Offence. without warrant issue in the first
or not. instance.
215 Taking gift to help to recover Shall not arrest Warrant „,

moveable property of which without war
a person has been deprived rant.
by an offence, without caus
ing apprehension of offender.
216 Harbouring an offender who May arrest with Ditto
has escaped from custody, out warrant.
or whose apprehension has
been ordered, if the offence
be capital.
If punishable with transport Ditto Ditto
ation for life, or with impri
If with imprisonment for 1 Ditto Ditto
year, and not for 10 years.
216A Harbouring robbers or dacoits Ditto Ditto
217 Public servant disobeying a Shall not arrest Summons

direction of law with intent without war
to save person from punish rant.
ment, or property from for
feiture.
218 Public servant framing an Ditto Warrant
incorrect record or writing
with intent to save person
from punishment, or pro
perty from forfeiture.
219 Public servant in a judicial Ditto Ditto
proceeding corruptly mak
ing and pronouncing an or
der, report, verdict or deci
sion which he knows to be
contrary to law.
II— continued
5 6 7 8
Whether bail Whether

able or not. compoundable Punishment under the
Indian Penal Code.
By what Court
triable.
or not.
Bailable Not compound- Imprisonment of either Presidency Ma

first class.

gistrate of the
first class.
with or without fine.
Ditto Ditto Imprisonment for a quar Presidency Ma
provided for the offen hrst class or
ce, or fine, or both. Court by which
the offence is
triable.
Ditto ... Ditto Rigorous imprisonment Court of Session,
for 7 years and fine. Presidency Ma
gistrate or Ma
gistrate of the
first class.
Hrst or second
class.
or fine, or both.

or fine, or both.
648 Schedule
CHAPTER XL—FALSE EVIDENCE AND
1 2 3 4
Whether a warrant
Whether the police or a summons shall
may arrest with ordinarily
Section. Offence. out warrant issne
or not in the first
instance.
220 Commitment for trial or con Shall not arrest Warrant

finement by a person having without war
authority, who knows that rant.
he is acting contrary to law.
221 Intentional omission to appre Ditto Ditto
hend on the part of a public
servant bound by law to ap
prehend an offender, if the
offence be capital.
If punishable with transport- Ditto Ditto
action for life or imprison
ment for 10 years.

than 10 years.
222 Intentional omission to ap Ditto Ditto

prehend on the part of a pub
lic servant bound by hw to
apprehend person under sen
tence of a Court of Justice
if under sentence of death.
If under sentence of transport Ditto Ditto
ation or penal servitude for
life, or transportation, im
prisonment or penal servi
tude for 1 0 years or upwards.
If under sentence of imprison Ditto Ditto . ...
ment for less than 10 years
or lawfully committed to
custody.
223 Escape from confinement neg Ditto Summons

ligently suffered by a public
servant.
1
OFFENCES AGAINST PUBLIC JUSTICE -continued.
5 6 7 8
Whether bail Whether com- P unishment under the By what Court

or not.
Bailable Not compound- Imprisonment of either Court of Session.

able. description for 7 years,
or fine, or both.

Ditto ... Ditto ... Imprisonment of either Court of Session,

with or without tine. gistrate or Ma
gistrate of the
first class.
Ditto Ditto ... Imprisonment of either Presidency Ma
with or without fine. gistrate of the
first or second
class.
Not bailable... Ditto ... Transportation for life, Court of Session.
or imprisonment of
years, with or without
tine.

Bailable ,., Ditto ... Imprisonment of either Court of Session,

gistrate of the
first class.
Ditto ... Ditto ... Simple imprisonment for Presidency Ma
gistrate of the
first or second
class.
650 Schedule
CHAPTEJt Xl.—FALSE EVIDENCE AND
1 2 3 4

rant or a sum
Section. Offence. lice may arrest mons shall ordi
without warrant narily issue in
or not. the first instance.
224 Resistance or obstruction by May arrest with Warrant

a person to his lawful appre out warrant.
hension.
225 Resistance or obstruction to Ditto Ditto

the lawful apprehension of
another person, or rescuing
him from lawful custody.
If charged with an offence Ditto Ditto
punishable with transport
ation for life, or imprison
ment for 10 years.
If charged with a capital Ditto Ditto

offence.
If the person is sentenced to Ditto Ditto

transportation for life, or to
transportation, penal servi
tude or imprisonment for 10
years or upwards.
If under sentence of death ... Ditto Ditto
225A Omission to apprehend, or

sufferance of escape, on part
of public servant, in cases
not otherwise provided for—
(a) in case of intentional Shall not arrest Ditto
omission or sufferance; without war
rant.
(b) incase of negligent omis Ditto Summons

sion or sufferance.
5 6 7 8

bailable or compoundable Indian Penal Code. triable.
not. or not.

able description for 2 years, gistrate or Ma
first or second
class.
Not bailable... Ditto ••• Imprisonment of either Court of Session,

gistrate of the
first class.
and fine.
Ditto Ditto ... Ditto Ditto.

or imprisonment of
cither description for
10 years and fine.
Bailable Ditto Imprisonment of either Court of Session,

gistrate of the
first class.
gistrate of the
first or second
class.
t
652 Schedule
1 2 3 4

rant or a sum
22oB Resistance or obstruction to May arrest with Warrant

lawful apprehension, or es out warrant.
cape or rescue, in cases not
otherwise provided for.
226 Unlawful return from trans Ditto Ditto

portation.
227 Violation of condition of re Shall not arrest Summons

mission of punishment. without war
rant.
228 Intentional insult or interrup Ditto Ditto

tion to a public servant sit
ting in any stage of a judi
cial proceeding.
229 Personation of a juror or Ditto Ditto

assessor.
CHAPTER XII.—OFFENCES RELATIX'i
231 Counterfeiting, or performing May arrest with Warrant

any part of the process of out warrant.
counterfeiting, coin.
232 Counterfeiting, or performing Ditto Ditto
any part of the process of
counterfeiting, the Queen's
coin.
233 Making, buying or selling Ditto Ditto
instrument for the purpose
of counterfeiting coin.
H<—continued.
OFFENCES AGAINST PUbLIC JUSTICE— concluded.
5 fi 7 8

bailable or eoinpoundable By what Court
Bailable Not coin- Imprisonment of either Presidency Ma

poundable. description for 6 months, gistrate or Ma
or 6 ne, or both. gistrate of the
first or second
class.
Not bailable. Ditto Transportation for life, Court of Session.
and line and rigorous im
prisonment for 3 years
before transportation.
Ditto Ditto Punishment of original The Court by
sentence, or if part of which the origi
the punishment has been nal offence
undergone, the residue. was triable.
Bailable Ditto Simple imprisonment for The Court in
6 months, or ' fine of which the of
1 ,000 rupees, or both. fence is com
mitted, subject
to the provi
sions of Chapter
XXXV.
first class.
TO COIN' AND GOVERNMENT STAMPS.

i
Not bailable ... Not eoinpound Imprisonment of either Court of Session.
able. description for 7 yean
and tine.
or imprisonment of
10 years, and fine.
I description for 3 years Presidency Ma
mid fine. gistrate or Ma
gistrate of the
first class.
654 Schedule
CHAPTER XII.—OFFENCES RELATING TO
1 2 3 4

rant or a sum
without warrant
the first instance.
234 Making, buying or selling in May arrest with Warrant

strument for the purpose of out warrant.
counterfeiting the Queen's
coin.
235 Possession of instrument or Ditto Ditto
raateriiil for the purpose of
using the same for counter
feiting coin.
If Queen's coin Ditto Ditto
236 Abetting in British India the Ditto Ditto

counterfeiting out of British
India of coin.
237 Import or export of counter Ditto Ditto

feit coin, knowing the same
to be counterfeit.
238 Import or export of counter Ditto Ditto

feits of the Queen's coin,
knowing the same to he
counterfeit.
239 Having any counterfeit coin Ditto Ditto
known to be such when it
came into possession, and
delivering, etc., the same to
any person.
240 The same with respect to the Ditto Ditto
Queen's coin.
241 Knowingly delivering to an Ditto Ditto

other any counterfeit coin as
genuine which, when first
possessed, the deliverer did
not know to be counterfeit.
1
II—continued. 655
COIN AND GOVERNMENT STAMPS—continued.
5 6 " 7 8
Whether Whether
bailable eonipoundiible Punishment under the By what Court
or not. or not. Indian Penal Code. triable.
Not bailable .. Not c 0 in - Imprisonment of either Court of Session.

poundable. description for 7 years
and tine.

and line. gistrate or Ma
gistrate of the
first class.
and fine.
Ditto Ditto The punishment provided Ditto.
for abetting the coun
terfeiting of such coin
within British India.
and line. gistrate or Ma
gistrate of the
first class.
Ditto Ditto Transportation for life Court of Session.
or imprisonment of
10 years and tine.
Ditto ... Ditto Imprisonment of either Court of Session,
gistrate of the
first class.
and tine.
or lino of ten times the gistrate of the
value of the coin coun first or second
terfeited, or both.
1
656 Schedule
CHAPTER XII.—OFFENCES RELATING TO
1 2 3 4

Section. Offence without warrant mons shall ordi
the first instance.
242 Possession of counterfeit coin May arrest with Warrant

by a person who knew it to out warrant.
be counterfeit when be be
came possesseil thereof.
243 Possession of Queen's coin by Ditto Ditto

a person who knew it to be
counterfeit when he became
possessed thereof.
244 Person employed in a Mint Ditto Ditto
causing coin to be of a dif
ferent weight or composition
from that fixed by law.
245 Unliwfully taking from a Ditto Ditto
Mint any coining instrument.
246 Fraudulently diminishing the Ditto Ditto
weight or altering the com
position of any coin.
247 Fraudulently diminishing the Ditto Ditto

weight or altering the com
position of the Queen's coin.
248 Altering appearance of any Ditto Ditto
coin with intent that it shall
pass as a coin of a different
description.
249 Altering appearance of the Ditto Ditto
Queen's coin with intent
that it shall pass as a coin of
a different description.
250 Delivery to another of coin Ditto Ditto
possessed with the know
ledge that it is altered.
261 Delivery of Queen's coin pos Ditto Ditto
sessed with the knowledge
that it is altered.
II— continued.
COIN AND GOVERNMENT STAHPS-cmUinued.
5 6 7 8
Whether bail Whether Punishment under the

eompoundable By what Court
able or not. or not. Indian Penal Code. triable.
Not bailable... Not compound Imprisonment of either Court of Session,

able description for 3 years Presidency Ma
gistrate of the
first class.
and line.

gistrate of the
first class.
and fine.
and fine.

and fine.

and line.
Ditto Ditto . ... Imprisonment of either Ditto.
and fine.
4'-'
658 Schedule
CHAPTEU XII.—OFFENCES RELATING TO
1 2 3 4
Whether a war
Whether the po rant or a sum
252 Possession of altered coin by May arrest with Warrant

a person who knew it to be out warrant.
altered when he became
possessed thereof.
253 Possession of Queen's coin Ditto Ditto

by a person who knew it to
be altered when he became
possessed thereof.
Ditto Ditto
254 Delivery to another of coin
as genuine which, when
first possessed, the deliverer
r did not know to be altered.
Ditto Ditto
255 Counterfeiting a Government
stamp.
Ditto Ditto
256 Having possession of an
instrument or material
for the purpose of coun
terfeiting a Government
stamp.
Ditto Ditto
257 Making, buying or selling in
strument for the purpose of
counterfeiting a Govern
ment stamp.
Ditto Ditto
258 Sale of counterfeit Govern
ment stamp.
Ditto Ditto
259 Having possession of a coun
terfeit Government stamp.
Ditto Ditto
260 Using as genuine a Govern
ment stamp known to be
counterfeit.
COIN AND GOVERNMENT STAMPS-continued.
5 6 7 8
Whether Whether
bailable or compoundable Punishment under the
Indian Penal Code.
By what Court
triable.
not. or not.
Not bailable ... Not compound- Imprisonment of either Court of Session,

able. description for 3 years Presidency Ma
gistrate of the
first class.
and fine.

or fine of ten times the gistrate of the
value of the coin. first or second
class.
Bailable Not com- Transportation for life, Court of Session.
poundable. or imprisonment fit
• 10 years, and fine.
and fine.
Ditto Ditto ... Ditto Court of Session,

Presidency Ma
gistrate or Ma
gistrate of the
tarst class.
or fine, or both.
660 Schedule
CHAPTER XII.- OFFENCES RELATING TO
3 ■ i
1 2
Whether the police Whether a war-
may arrest with ant or a summons
shall ordinarily
or not. issue in the
first instance
261 Effacing any writing from a May arrest with Warrant

substance bearing a Govern out warrant.
ment stamp, or removing
from a document a stamp
used for it with intent to
cause loss to Government.
262 Using a Government stamp Ditto Ditto
known to have been before
used.
263 Erasure of mark denoting Ditto ... Ditto

that stamp has been used.
263A Fictitious^stamps Ditto ... Ditto
CHAPTER XIII.-OFFENCES RELATING '
264 Fraudulent use of false in Shall not arrest Summons

strument for weighing. without warrant.
865 Fraudulent use of false weigh t Ditto Ditto

or measure. i
266 Being in possession of false Ditto Ditto

weights or measures foi
fraudulent use.
267 Making or selling false Ditto Ditto
weights or measures for
fraudulent use.
1 1—- continued. 66 1
COIN AND GOVERNMENT STAMPS-ronrM*/
5 6 7 8

able or not. coniponndable Punishment under the By what Court
or not. Indian Penal Code. triable.
Bailable NTot compound Imprisonment of either Court of Session,

gistrate of the
first class.

first or second
class.
gistrate of the
first class.
Ditto Ditto Fine of 200 rupees Presidency Ma
gistrate or Ma
gistrate of the
first class.
TO WEIGHTS AND MEASURES.

able. description for 1 year, gistrate or Ma
first or second
class.
Ditto ... Ditto Ditto Ditto.

662 Schedule
CHAPTER XIV.-OFFENCES AFFECTING THE PUBLIC
I 2 3 4

first instance.
269 Negligently doing any act May arrest with Summons ...
known to be likely to spread out warrant.
infection of any disease
dangerous to life.
270 Malignantly doing any act Ditto Ditto

known to be likely to spread
infection of any disease dan
gerous to life.
271 Knowingly disobeying any Shall not arrest Ditto
quarantine rule. without warrant.
272 Adulterating food or drink Ditto Ditto

intended for sale, so as to
make the same noxious.
273 Selling any food or drink as Ditto Ditto

food and drink, knowing
the same to be nosious.
274 Adulterating any drug or Ditto Ditto

medical preparation intend
ed for sale so as to lessen
its efficacy, or to change its
operation | or to make it
noxious.
275 Offering for sale or issuing Ditto Ditto

from a dispensary any drug
or medical preparation
known to have been adul
terated.
276 Knowingly selling or issuing Ditto ... Ditto
from a dispensary any drug
or medical preparation as a
different drug or medical
preparation.
HEALTH, SAFETY, CONVENIENCE, DECENCY AND MORALS.
5 6 7 8

or not.

able. description for 6 gistrate or Ma
months, or fine, or both. gistrate of the
first or second
class.
or fine, or both.

description for 6 gistrate or Ma
months, or fine, or both. gistrate of the
first or second
class.
Ditto ... Ditto Imprisonment of either Ditto.
description for 6
months, or fine of
Ditto Ditto ,.. Ditto ... Ditto.
Ditto ... Ditto Ditto Ditto.

664 Schedule
CHAPTER XIV.—OFFENCES AFFECTING THE PUBLIC HEALTH,
1 2 3 4

mons shall
Section. Offence. without warrant ordinarily
or not. issue in
the first instance.
277 Defiling the water of a public May arrest with Summons

spring or reservoir. out warrant.
278 Making atmosphere noxious Shall not arrest Ditto

to health. without warrant.
279 Driving or riding on a public May arrest with Ditto
way so rashly or negligently out warrant.
as to endanger human life,
etc.
280 Navigating any vessel so Ditto Ditto
rashly or negligently as to
endanger human life, etc.
281 Exhibition of a false light, Ditto Warrant

mark or buoy.
282 Conveying for hire any per Ditto ... Summons ...
son by water in a vessel in
such a state, or so loaded, as
to endanger his life.
283 Causing danger, obstruction Ditto Ditto

or injury in any public way
or line of navigation.
284 Dealing with any poisonous Shall not arrest Ditto

substance so as to endanger without war
human life, etc. rant.
285 Dealing with tire or any cora- May arrest with Ditto
, bustiblo matter no as to en out warrant.
danger human life, etc.
286 So dealing with any explosive Ditto Ditto
substance.
SAFETY, CONVENIENCE, DECENCY AND MORKLS-continued.
5 6 7 8

able or not. compoundable Indian Penal Code. , triable.
or not.
Bailable Not compound- Imprisonment of either Any Magistrate.

able. description for 3
rupees, or both.
Ditto Ditto Fine or 500 rupees Ditto.

description for6 months,
or fine of 1,000' rupees,
or both.
Ditto Ditto Ditto Presidency Ma
gistrate or Ma
gistrate of the
first or second
class.
Ditto Ditto Imprisonment of either Court of Ses
description for 7 years, sion.
or fine, or both.
d e s c r i p t ion for 6 gistrate or Ma
months, or fine of gistrate of the
1,000 rupees, or both. first or second
class.

d e s c r i p tion for 6
months, or fine of
1 ,000 rupees, or both.
Ditto Ditto Ditto Any Magistrate.
Ditto ... * Ditto Ditto Ditto.

666 Schedule
CHAPTER XIV.—OFFENCES AFFECTING THE PU3LIC HEALTH,
1 2 3 4

may arrest with irordinarily
a summons shall
issue
instance.
287 So dealing with any machin Shall not arrest Summons

ery. without war
rant.
288 A person omitting to guard Ditto Ditto

against probable danger to
human life by the fall of any
building over which he has
a right entitling him to pull
it down or repair it.
289 A person omitting to take May arrest with Ditto
order with any animal in his out warrant.
possession, so as to guard
against danger to human
life, or of grievous hurt,
from such animal.
290 Committing a public nui Shall not arrest Ditto
sance. without war
rant.
291 Continuance of nuisance after May arrest with Ditto
injunction to discontinue. out warrant.
292 Sale, etc., of obscene books, Ditto Warrant

etc.
293 Having in possession obscene Ditto ... Ditto ...

books, etc., for sale or ex
hibition.
294 Obscene songs Ditto ••• Ditto
294A Keeping a lottery office Shall not arrest Summons
without war
rant.
Publishing proposals relating Ditto Ditto
to lotteries.
II—continued. 667
SAFETY, CONVENIENCE, DECENCY AND MORALS—concluded.
5 6 7 8

or not.

able. description for6 months, gistrate or Ma
or fine of 1,000 rupees, gistrate of the
class.
Ditto Ditto Ditto Any Magistrate.

6 months, or fine, or gistrate or Ma
both. gistrate of the
hrst or second
class.
description for 3 months
or fine, or both.

Ditto ••• Ditto Imprisonment of either Any Magistrate.
description for 6 months
or fine, or both.
Ditto ... Ditto Fine of 1,000 rupees ... Ditto.
668 Schedule
CHAPTE 1 XV.—OFFENCES
1 2 3 4

Section. Offence. police may arrest rant or a summons
without warrant shall, ordinarily
issue in the
295 Destroying, damaging or May arrest with Summons

defiling a place of worship out warrant.
or sacred object with intent
to insult the religion of any
class of persons.
296 Causing a disturbance to an Ditto Ditto
assembly engaged in religi
ous worship.
207 Trespassing in place of wor Ditto Ditto
ship or sepulture, disturb
ing funeral, with intention
to wound the feelings or to
insult the religion of any
person, or offering indignity
to a human corpse.
298 Uttering any word or making Shall not arrest Ditto
any sound in the hearing, without war
or making any gesture, or rant.
placing any object in the
sight, of any person, with
intention to wound his reli
gious feeling.
CHAPTER XVI.—OFFENCES
Of Offences
1
3' 2 Murder May arrest with Warrant
out warrant.
303 Murder by a person under Ditto Ditto

sentence of transportation
for life.
304 Culpable homicide not Ditto Ditto
amounting to murder, if act
by which the death is caused
is done with intention of
causing.death, etc.
II — continued. '669
RELATING TO RELIGION.
5 6 7 8

or not.
Bailable ... Not c 0 m- Imprisonment of either Presidency Mag

poundablc. description for i years, istrate or Mag
or fine, or both. istrate of the
first or second
class.
or tine, or both.
Ditto Com pound- Ditto Ditto.

able.
AFFECTING THE HUMAN BODY.

Affecting Lije.
Not bailable... Not com Death, or transportation Court of Session.

poundable. for life, and fine.
Ditto Ditto Death ... • Ditto.

or imprisonment of
10 years, and tine.
670 Schedule
CHAPTER XVI.—OFFENCES AFFECTING
Of 0fences affecting
1 2 3 4

rant or a sum
police may arrest mons
Section. Offence. without warrant narilyshall ordi
or not. issue in
the first instance.
If act is done with knowledge May arrest with Warrant

that it is likely to cause out warrant.
death, but without any in
tention to cause death, etc.
304A Causing death by rash or Ditto Ditto
negligent act.
305 Abetment of suicide commit Ditto Ditto

ted by a child, or insane or
delirious person, or an idiot,
or a person intoxicated.
306 Abetting the commission of Ditto Ditto
suicide.
307 Attempt to murder Ditto Ditto

If such act cause hurt to any Ditto Ditto
person.
Attempt by life-convict to Ditto Ditto
murder, if hurt is caused.
308 Attempt to commit culpable Ditto Ditto
homicide.
If such act cause hurt to any Ditto Ditto

person.
•
309 Attempt to commit suicide ••• Ditto Ditto
311 Being a thug Ditto Ditto

U —continued 671
TE1E HUMAN BODY—continued.
Lije —concluded.
5 6 7 8
Whether bail Whether com- Punishment under the

poundable or By whut Court
able or not. not. Indian Penal Code. triable.
Not bailable... Not compouud- Imprisonment of either Court of Session.

or tine, or both.
Bailable Ditto Imprisonment of either Court of Session,

gistrate of the
tirst class.
Not bailable-. Ditto Death, or transportation Court of Session.
for life, or imprison
ment for 10 years, and
line.
and tine.
Ditto Ditto . ... Ditto Ditto.
or as above.
Ditto Ditto Death or as above Ditto.
Bailable Ditto Imprisonment, of either Ditto.

or line, or both.
or tine, or both
Ditto Ditto Simple imprisonment for Presidency Mag
1 year, or tine, or both. istrate or Mag
istrate of the
tirst or second
class.
Not bailable... Ditto Transportation for life Court of Session.
and tine.
672 Schedule
CHAPTER XVI.- OFFENCES AFFECT
Oj the Causing of Miscarriage ; of Injuries to Unborn Children ;
1 2 3 4
Whether a warranl
Whether the police or a summons shal
Section. Offence. may arrest with ordinarily issue
out warrant in the first
or not instance.
312 Causing miscarriage Shall not arrest Warrant

without war
rant.
If the woman be quick with Ditto Ditto
child.
313 Causing miscarriage without Ditto Ditto

woman's consent.
314 Death caused by an act done Ditto it. Ditto

with intent to cause miscar
riage.
If act done without woman's Ditto Ditto
consent.
315 Act done with intent to pre Ditto • Ditto
vent a child being born
alive, or to cause it to die
after its birth.
316 Causing death of a quick un Ditto Ditto

born child by an act amount
ing to culpable homicide.
317 Exposure of a child under 12 May arrest with Ditto

years of age by parent or out warrant.
person having care of it
with intention of wholly
abandoning it.
318 Concealment of birth by se Ditt Ditto

cret disposal of dead body.
ING THE HUMAN BODY -continued.
of the Exposure of Infants ; and of the Concealment of Births.
5 6 7 8

compoundable Punishment under the By what Court
able or not. or not. Indian Penal Code triable.

or fine, or both
Ditto Ditto Imprisonment of either
and fine.
Not bailable. Ditto Transportation for life or Ditto.
imprisonment of either
and fine.
Ditto ... Ditto Imprisonment of either pitto.
and fine.
Ditto ... Ditto ... Transportation for life, Pitto.
or as above.
Ditto ... Ditto Imprisonment of either pitto.
or tine, or both

and fine.
• Bailable Ditto Imprisonment of either Ditto.

or fine, or both.

or tine, or both. gistrate or Ma
gistrate of the
hrst or second
class.
J
43
674 Schedule
CIIAPTER XVI.—OFFENCES AFFECT
On
Whether a warrant
Whether the or a summons
police may arrest shall ordinarily
Section. Offence. without warrant issue in the first
or not. instance.
Voluntarily causing hurt Shall not arrest Summons

without war
rant.
324 Voluntarily causing hurt by May arrest with Ditto
dangerous weapons or out warrant.
means.
Voluntarily causing grievous Ditto Ditto

hurt.
Voluntarily causing grievous Ditto Ditto

hurt by dangerous weapons
or means.
327 Voluntarily causing hurt to Ditto Warrant

extort property or a valu
able security, or to constrain
to do anything which is
illegal or which may facili
tate the commission of an
offence.
3'28 | Administering stupefying Ditto Ditto

drug with intent to cause
hurt, etc.
329 Voluntarily causing grievous Ditto Ditto
hurt to extort property or
a valuable security, or to
constrain to do anything
which is illegal, or which
may facilitate the com
mission of an offence.
ING THE HUMAN BODY—continued.
Hurt.
5 6 7 8

poundable By what Court
or not.
Bailable C o ni p o und- Imprisonment of cither Any Magistrate.

or fine of 1,000 rupees,
or both.
Ditto Compoumlable Imprisonment of either Court of Session,
when permis description for 3 years, Presidency Ma
sion is given or fine, or both. gistrate or Ma
by the Court gistrate of the
before which first or second
a prosecution clam.
is pending.

and fine.
Not bailable ... Not compound- Transportation for life, or Court of Session,
able. imprisonment of either Presidency Ma
description for 10 years gistrate or Ma
and fine. gistrate of the
hrst class.
and fine.
Ditto Litto Ditto ... Ditto.
Ditto Ditto Transportation for life, or Ditto.

and fine.
Schedule
CHAPTER XVI —OFFENCES AFFECT
Of Hurt—
1 2 3 4
Whether the or Whether a warrant

a summons shall
police may arrest ordinarily
Section. Offence. issue
without warrant in the first in
or not. stance.
330 Voluntarily causing hurt to May arrest with Warrant

extort confession or infor out warrant.
mation, or to compel restor
ation of property, etc.
hurt to extort confession or
information, or to compel
restoration of property, etc.
332 Voluntarily causing hurt to Ditto Ditto
deter public servant from
his duty.

hurt to deter public servant
from his duty.
334 Voluntarily causing hurt on Shall not arrest Summons
gravo and sudden provoca without w ar -
tion, not intending to hurt rant
any other than the person
who gave the provocation.
335 Causing grievous hurt on May arrest with Summons
grave and sudden provoca out warrant.
tion, not intending to hurt
any other than the person
who gave the provocation.
330 Doing any act which endan Ditto ... Ditto

gers human life or the per
sonal safety of others.
337 Causing hurt by an act which Ditto Ditto

endangers human life, etc.
i
II — continued.
1NG THE HUMAN BODY—continued.

continued.
5 6 7 8
Whether Whether
Bailable Not compound Imprisonment of either Court of Session.

and fine.

and fine
Bailable ... Ditto Imprisonment of either Court of Session,

description for 3 years, Pres idency
Magistrate of
the first class.
Not bailable... Ditto Imprisonment of either Court of Session.
and fine.
Bailable ... Comp o u n d - Imprisonment of either Any Magistrate.
able. d e 8 c r i p tion for 1
month, or fine of 500
rupees, or both.
Bailable ... Compoundable Imprisonment of either Court of Ses

when permis description for 4 years, sion, Presi
sion is given or fine of 2,000 rupees, dency Magis
by the Court or both. trate or Magis
before which trate of the
a prosecution first or second
is pending. class.
Ditto Not compound- Imprisonment of either Any Magistrate.
able. descript ion for 3
rupees, or both.
Ditto Comp o u n d- Imprisonment of either Presidency Mag
able when descr i p t i o n for 6 istrate or Mag
permission is months, or fine of 500 istrate of the
given by rupees, or both. first or second
the Court class.
before which
a prosecution
is pending.
678 Schedule
CHAPTER XVI.—OFFENCES AFFECT

Of Hurt—
1 2 3 4

police may arrest orordinarily
a summons shall
issue
Section. Offence. without warrant in the first
or not. instance.
338 Causing grievous hurt by an May arrest with Summons

act which endangers human out warrant.
life, etc.
Of Wrongful Restraint and
341 Wrongfully restraining any May arrest with Summons

person. out warrant.
342 Wrongfully confining any Ditto Ditto

person.
343 Wrongfully confining for Ditto Ditto

three or more days.
344 Wrongfully confining for ten Ditto Ditto

or more days.
345 Keeping any person in wrong Shall not arrest Ditto

ful confinement, knowing without war-
that a writ hag been issued want.
for his liberation.
346 Wrongful confinement in May arrest with Ditto

secret. out warrant.
II —continued.
ING THE HUMAN BODY—continued.

concluded.
5 6 7 8
Whether bail Whether com Punishment under the

poundable By what Court
Bailable Compoundable Imprisonment of either Presidency Ma

when permis description for 2 years, gistrate or Ma
sion is given or fine of 1,000 rupees, gistrate of the
by the Court or both. first or second
before which class.
a prosecution
is pending.
Wrongful Confinement.
Bailable Comp o u n d - Simple imprisonment for Any Magistrate.

rupees, or both.
Ditto ... Ditto Imprisonment of either Presidency Ma

description for 1 year, gistrate or Ma
or fine of 1,000 rupees, gistrate of the
class.
Ditto Not compound- Imprisonment of either Ditto.
or fine, or both.

gistrate of the
tirst or second
class.
in addition to imprison
ment under any other
section.
Ditto Ditto Ditto Ditto,
680 Schedule
Of Wrongful Restraint and
1 2 3 4

Section. Offence. without warrant mons shall ordi
the first instance.
347 Wrongful confinement for May arrest with Summons

the purpose of extorting out warrant
property, or constraining to
an illegal act, etc.
348 Wrongful confinement for Ditto Ditto

the purpose of extorting
confession or information,
or of compelling restoration
of property, etc.
Of Criminal Force
352 Assault or use of criminal Shall not arrest Summons

force otherwise than on without war
grave provocation. rant.
353 Assault or use of criminal May arrest with Warrant ...

force io deter a public ser out warrant.
vant from discharge of his
duty.
354 Assault or use of criminal Ditto Ditto

force to a woman with in
tent to outrage her modesty.
355 Assault or criminal force Shall not arrest Summons
with intent to dishonour a without war
person, otherwise than on rant.
grave and sudden provoca
tion.
356 Assault or criminal force in May arrest with Warrant
attempt to commit theft of out warrant.
property worn or carried by
a person.
II — continued. 68 1
ING THE HUMAN BODY—continued
Wrongjul Confinement— concluded.
5 6 7 8

compoundable Indian Penal Code. triable.

gistrate of the
first or second
class.
Ditto Ditto Ditto Court of Session,
Presidency Ma
gistrate or Ma
gistrate of the
hrst class.
ami Assault.
Bailable Comp o u n d- Imprisonment of either Any Magistrate.

able. description for 3
months, or tine of 500
rupees, or both.
Bailable ... Not compound- Imprisonment of either Presidency Ma
first or second
class.
Ditto Comp o u n d - Ditto Ditto.

able.
Not bailable... Not compound- Ditto Any Magistrate.

able.
682 Schedule
Criminal Force and
1 2 3 4
lice may arrest rant or a S im
Section. Offence. without war mons shall or
rant or not. dinarily issue in
the first in
stance.
357 Assault or use of criminal May arrest with Warrant

force in attempt wrongfully out warrant.
to confine a person.
358 Assault or use of criminal Shall not arrest Summons

force on grave and sudden without war
provocation. rant.
Of Kidnapping, Abduction,
363 Kidnapping ... ... May arrest with Warrant ...

out warrant.
364 Kidnapping or abducting in Ditto Ditto

order to murder.
365 Kidnapping or abducting Ditto Ditto

with intent secretly and
wrongfully to confine a per
son.
366 Kidnapping or abducting a Ditto Ditto

woman to compel her mar
riage or to cause her defile
ment, etc.
367 Kidnapping or abducting in Ditto Ditto
order to subject a person to
grievous hurt, slavery, etc.
368 Concealing or keeping in con Ditto Ditto
finement a kidnapped per
son.
II — continued 683
INGTHE HUMAN BODY—continued.
Assault— concluded.
5 6 7 8
Whether
Whether bail compoundable Punishment under the By what Court
Bailable Not compound- Imprisonment of either Any Magistrate.

or fine of 1,000 rupees,
or both.
•
Ditto Comp 0 u n d - Simple imprisonment for Ditto.
rupees, or both.
Slavery and Forced Labour.
Not bailable... Not compound- Imprisonment of either Court of Session,

gistrate of the
first class.
Ditto Ditto Transportation for life, Court of Session.
fine.
gistrate of the
first class.
1 Ditto Ditto Imprisonment of either Court of Session.
and fine.
Ditto ... Ditto ... Punishment for kidnap Ditto.

ping or abduction.
684 Schedule
Of Kidnapping, Abduction, Slavery
1 2 3 4
Whether a wurrant
Section. Offence. out warrant issue
stance.
369 Kidnapping or abducting a May arrest with Warrant

child with intent to take out warrant.
property from the person of
such child.
370 Buying or disposing of any Shall not arrest Ditto

person as slave. without war
rant.
371 Habitual dealing in slaves ... May arrest with Ditto
out warrant.
372 Selling or letting to hire a Ditto Ditto

minor for purposes of prosti
tution, etc.
373 Buying or obtaining posses Ditto Ditto ...

sion of a minor for the same
purposes.
374 Unlawful compulsory labour, Ditto Ditto
OS
376 Rape—
If the sexual intercourse was Shall not arrest Summons
by a man with his own without war
wife. rant.
In any other case May arrest with Warrant ...

out warrant.
II — continued 685
ING THE HUMAN BODY—continued,
and Forcei Labour—soucluJjd.
5 6 7 8

able or not. compoundable Punishment under the
Indian Penal Code.
By what Court
or not. triable.

able. description for 7 years Pres i d e n c y
and tine. Magistrate or
Magistrate of
the first class.
Bailable Ditto ... Ditto Court of Session.
Not bailable Ditto Transportation for life, Ditto.

or imprisonment of
10 years and tine.
description for 10 years Presi d e n c y
Magistrate of
the first class.
Bailable Comp 0 u n d - Imprisonment of either Any Magistrate.

or tine, or both.
Hape.
Bailable Not com Transportation for life, Court of Session.

poundable. or imprisonment of
10 years, and fine.
Not bailable .. Ditto Ditto Ditto.
686 Schedule
Of Unnatural
1 2 3 4

Section. Offence police it ay arrest rant or a sum
mons shall
without warrant ordinarily
or not. issue in
I the first instance
1
377 Unnatural offences May arrest with Warrant
out warrant.
CHAPTER XVII.—OFFENCES
oj
379 Theft May arrest with Warrant

out warrant.
380 Theft in a building, tent or Ditto ... Ditto

vessel.
381 Theft by clerk or servant of Ditto Ditto

property in possession of
master or employer.
382 Theft, preparation having Ditto Ditto

been made for causing
death, or hurt, or restraint,
or fear of death, or of hurt,
or of restraint, in order to
the committing of such theft
or to retiring after commit
ting it, or to retaining pro
perty taken by it.
Oj Ex
384 Extortion Shall not arrest Warrant

without war-
rant.
INO THE HUMAN BODY—concluded.
Offences.
6 6 7 8

poundablo By what Court
able or not or not. Indian Penal Code. triable.
Not bailable Not compound- Transportation for life, Court of Session,

able. or imprisonment of Pres i d e n c y
either description for Magistrate or
10 years, and fine. Magistrate of
the first class.
AGAINST PROPERTY.
Theft.
Not bailable... Not compound- Imprisonment of either Any Magistrate.

able. description for 3 yours,
or fine, or both.
description for 7
years and tine.
D:tto Ditto Ditto Court of Session,
Pres i d e n c y
Magi strate or
Mag istrate of
the first or
second class.
Ditto Ditto Rigorous imprisonment Court of Session,
for 10 years and fine. P r e s i d ency
Magistrate or
Magistrate of
the first class.
tortion.
Bailable Not c 0 m - Imprisonment of either Court of Session,

poundable. description for 3 years, Preside ncy
Magistrate of
the first or se
cond class.
688 Schedule
Of Extortion
1 2 3 4
Whether the police )r.Vhether a warrant

a summons shall
Section. Offence. out warrant in the first
or not. instance.
385 Putting or attempting to put Shall not arrest Warrant

in fear of injury, in order without war
to commit extortion. rant.
386 Extortion by putting a per Ditto Ditto

son in fear of death or
grievous hurt.
387 Putting or attempting to put Ditto Ditto
a person in fear of death or
grievous hurt, in order to
commit extortion.
388 Extortion by threat of ac Ditto Ditto
cusation of an offence pun 1
ishable with death, trans
portation for life, or impri
If the offence threatened be Ditto Ditto
an unnatural offence.
389 Putting a person in fear of Ditto Ditto
accusation of offence pun
ishable with death, trans 1
portation for life, or with
imprisonment for 10 years,
in order to commit extortion.
If the offence be an un Ditto Ditto
natural offence.
Of Robbery
398 Robbery May arrest with Warrant

out warrant.
If committed on the highway Ditto Ditto

between sunset and sunrise.
AGAINST PROPERTY -continued.
—concluded.
5 6 7 8

or not.

gistrate of the
first or second
class.
and fine.
and fine.
Bailable Ditto Imprisonment of either Ditto.

and fine.
Ditto Ditto Transportation for life... Ditto.

and fine.
Ditto Ditto Transportation for life... Ditto.
and Dacoily.
Not bailable Not com Rigorous imprisonment Court of Session,

poundable for 10 years and fine. Pi es i d e n c y
Magistrate or
Magistrate of
the first class.
Ditto Ditto Rigorous imprisonment Ditto.
for 14 years and fine.
44
690 Schedule
Of Robbery
1 2 3 4
Whether the polict Whether a warrant]
Section. Offence. may arrest with or a summons shall
out warrant ordinarily issue
stance.
393 Attempt to commit robbery. May arrest with Warrant

out warrant
394 Person voluntarily causing Ditto Ditto

hurt in committing or at
tempting to commit robbery,
or any other person jointly
concerned in such robbery.
395 Dacoity Ditto Ditto
396 Murder in dacoity Ditto Ditto
397 Robbery or dacoity, with Ditto Ditto

attempt to cause death or
grievous hurt.
398 Attempt to commit robbery Ditto Ditto
or dacoity when armed with
deadly weapon.
399 Making preparation to com Ditto Ditto
mit dacoity.
400 Belonging to a gang of per Ditto Ditto
sons associated for the pur
pose of habitually commit
ting dacoity.
401 Belonging to a wandering Ditto Ditto
gang of persons associated
for the purpose of habitually
committing thefts
402 Being one of five or more per Ditto Ditto

sons assembled for the pur
pose of committing dacoity
tl—continued.
AGAINST PROPERTY— continued.
and Dacoily— concluded.
5 6 7 8

coiupoundable Punishment under the By what Court
Not bailable. Not compound- Rigorous imprisonment Court of Session,

able. for 7 years and fine. Pres i d e n c y
Magistrate or
Magistrate of
the first class.
rigorous imprisonment
for 10 years and tine.

Ditto Ditto Death, transportation for Ditto.
life or rigorous impri
sonment for 10 years
and fine.
for not less than 7
years.

for 10 years and line.
rigorous imprisonment
Ditto Ditto Rigorous imprisonment Court of Session,

for 7 years and line. Presidency Ma
gistrate or Ma
gistrate of the
hrst class.
694 Schedule
CHAPTER XVII.—OFFEN'CES
Of Criminal Misap
1 2 3 4

Section. Offence mons shall ordi
403 Dishonest misappropriation of Shall not arrest Warrant

moveable property, or con without war
verting it to one's own use. rant.
404 Dishonest misappropriation of Ditto Ditto
property, knowing that it
was in possession of a de
ceased person at his death,
and that it has not since
been in the possession of
any person legally entitled
to it.
406 If by clerk or person employ Ditto Ditto
ed by deceased.
Of Crimin il
406 Criminal breach of trust ... May arrest with Warrant

out warrant.
407 Criminal breach of trust by a Ditto Ditto

carrier, wharfinger, etc.
406 Criminal breach of trust by a Ditto Ditto

clerk or servant.
1 1— contin ued. 693
AGAINST PROPERTY—continued.
propriation of Property.
5 6 7 8

bailable or not. coiiipoundable Indian Penal Code. triable.
or not.
Bailable ... Not compound- Imprisonment of either Any Magistrate.

or fine, i r both.
gistrate of the
first or second
class.

and fine.
Breach of Trust.
Not bailable ... Not compound- Imprisonment of either Court of Session,

gistrate of the
first or second
class.
gistrate of the
first class.

Presidency Ma
gistrate or Ma
gistrate of the
first or second
class.
694 Schedule
Oj Criminal Sreach
1 2 » 1 4
Whether the Whether a war-

Section. police may arrest ant or a summons
shall ordinarily
Offence. without warrant issue in
or not. the first
instance
409 Criminal breach of trust by May arrest with Warrant

public servant or by banker, out warrant.
merchant or agenty&c.
Oj the Receiving
411 Dishonestly receiving stolen May arrest with Warrant

property knowing it to be out warrant.
stolen.
412 Dishonestly receiving stolen Ditto Ditto

property, knowing that it
was obtained by dacoity.
413 Habitually dealing in stolen Ditto Ditto

property.
414 Assisting in concealment or Ditto ... Ditto

disposal of stolen property,
knowing it to be stolen.
Oj Cht
417 Cheating Shall not arrest Warrant

without warrant.
II—continued. 695
oj Trust—concluded.
5 6 7 8

bailable conipoundable Indian Penal Code. triable.
or not. or not.
Not bailable ... Not c o m - Transportation for life, Court of Session,

pounflttble. or imprisonment of Pres i dency
either description for Magistrate or
10 years and tine. Magistrate of
the first class.
of Stolen Property.
Not bailable... Not c o m - Imprisonment of either Court of Session,

poundable. description for 3 years, Presidency Ma
gistrate of the
first or second
class.
Ditto ... Ditto ... Transportation for life, Court of Session.
fine.
or imprisonment of
10 years and fine.
gistrate of the
first or second
class.
ating.
Bailable Not c o m- [ Imprisonment of either Presidency

poundable. description fori year, Magistrate or
or fine, or both. Magistrate of
the first or
second class.
696 Schedule
Of Cheating
1 2 3 4
Whether a war
Whether the rant or a sum
Section. Offence. police may arrest mons shall or
without warrant dinarily issue
instance.
418 Cheating a person whose in Shall not arrest Warrant
terest the offender was without warrant.
bound, either by law or by
legal contract, to protect.
i
419 Cheating by personation May arrest with Ditto
out warrant.
420 Cheating and thereby dis Ditto Ditto
honestly inducing delivery
of property, or the making
alteration or destruction of
a valuable security.
Of Fraudulent Deeds and
421 Fraudulent removal or con Shall not arrest Warrant

cealment of property, &c, without war
to prevent distribution rant.
among creditors
422 Fraudulently preventing from Ditto Ditto

being made available for his
creditors a debt or demand
due to the offender.
423 Fraudulent execution of deed Ditto Ditto ...

of transfer containing a
false statement of consider
ation.
424 Fraudulent removal or conceal litto Ditto
ment of property, of himself
or any other person, or assist
ing in the doing thereof, or
dishonestly releasing any
demand or claim to which
he is entitled.
—concluded.
5 6 7 8

bailable or coinpoundable Indian Penal Code. triable.
not. or not.

• or fine, or both. gistrate or Ma
gistrate of the
first or second
class.

gistrate of the
first class.
Disposition oj Property.
Bailable Not c 0 m - Imprisonment of either Presidency Ma

poundable. description for 2 years, gistrate or Ma
first or second
class.

69S Schedule
Of
1 2 3 4
Whether a warrant
Whether the police or a summons sliull
Section. 0 lienop. out warrant in the first
or not. instance.
426 Mischief Shall not arrest Summons

without warrant.
427 Mischief, and thereby causing Ditto Warrant

damage to the amount of 50
rupees or upwards.
428 Mischief by killing, poisoning, May arrest with Ditto

maiming or rendering useless out warrant.
any animal of the value of
10 rupees or upwards.
425 Mischief by killing, poisoning, Ditto Ditto
maiming or rendering useless
any elephant, camel, horse,
&c , whatever may be its
value, or any other animal of
the value of 50 rupees or
upwards.
430 Mischief by causing diminu Ditto Ditto
tion of supply of water for
agricultural purposes, &c.
431 Mischief by injury to public Ditto Ditto
road, bridge,navigable river,
or navigable channel, and
rendering it impassable or
less safe for travelling or
conveying property.
432 Mischief by causing inunda Ditto Ditto
tion or obstruction to public
drainage, attended with dam
age.
Mischief.
5 6 7 8

poundable Indian Penal Code. triable.
Bailable Compoundable Imprisonment of either Any Magistrate.

when the only description for 3
loss or damage months, or line, or both.
caused is loss
or damage to a
private person.
first or second
class.
Ditto Not compound- Ditto Ditto.

able.
Ditto Ditto Imprisonm ent of either Court of Session,

or tine, or both. gistrate, or Ma
gistrate of the
first or second
class.

gistrate of the
first or second
class.
700 Schedule
Of Mischief
1 i 3 4

rant or a sum
Section. Offence. lice may arrest mons
without warrant narilyshall ordi
issue in
433 Mischief by destroying or May arrest with Warrant

moving or rendering less out warrant.
useful a light house or sea
mark, or by exhibiting false
lights.
434 Mischief by destroying or Shall not arrest Ditto
moving, &c, a land-mark without war
fixed by public authority. rant.
435 Mischief by fire or explosive May arrest with Ditto

substance with intent to out warrant.
cause damage to amount of
100 rupees or upwards, or,
in case of agricultural pro
duce, 10 rupees or upwards.
43G Mischief by fire or explosive Ditto Ditto
substance with intent to
destroy a house, &c.
437 Mischief with intent to des Ditto Ditto

troy or make unsafe a deck
ed vessel or a vessel of 20
tons burden.
438 The mischief described in the Ditto Ditto
last section when committed
by fire or any explosive
substance.
439 Kunning vessel ashore with Ditto Ditto
intent to commit theft, &c.
440 Mischief committed after pre Ditto Ditto

paration made for causing
death, or hurt, Ac.
AGAINST PROPERTY—contmutd.
— concluded .
5 6 7 8

bailable or compoundable By what Court
Bailable Not co m- Imprisonment of either Court of Session.

poundable. description for 7 years,
or tine, or both.

first or second
class.

gistrate of the
first class.
Not bailablo Ditto Transportation for life, Court of Session.

or imprisonment of
10 years and line.
and line.
Ditto Ditt Transportation for life, Ditto.

or imprisonment of
10 years and fine.
and fine.
gistrate of the
j i first class.
702 Schedule
Of Criminal
1 2 3 4

Section. Offence. rant or a sum
lice may arrest mons
issue in
447 Criminal trespass May arrest with Summons

out warrant.
448 House-trespass Ditto Warrant
44S House-trespass in order to the Ditto Ditto

commission of an offence
punishable with death.
450 House-trespass in order to Ditto Ditto

the commission of an of
fence punishable with trans
portation for life.
451 House-trespass in order to Ditto ... Ditto

fence punishable with im
prisonment.
If the offence is theft Ditto Ditto
452 House-trespass, having made Ditto Ditto

preparation for causing
hurt, assault, &c.
453 Lurking house-trespass or Ditto Ditto

house-breaking.
II—continued. 7°3
Trespass.
5 6 7 8
Whether By what Court

Whether bail compoundable Punishment
Indian
under the
Penal Code. triable.
Bailable Compoundable, Imprisonment of either Any Magistrate.

description for 15
rupees, or both.
or line of 1,000 rupees,
or both.
Not bailable... Not compound - Transportation for life, Court of Session.
able. or rigorous imprison-

nnd fine.
Bailable Ditto Imprisonment of either Any Magistrate.

and tine.
Not bailable Ditto Imprisonment of cither Court of Session,

und tine. gistrate or Ma
gistrate of the
first or second
class.
Dit.o Ditto ... Imprisonment of either Presidency Mag

description for 2 years istrate or * ag-
and line. istrate of the
first or second
class.
704 Schedule
Of Criminal Tres
1 2 3 4
Whether a warrant
instance.
454 Lurking house-trespass or May arrest with Warrant

house-breaking in order to out warrunt.
fence punishable with im
prisonment.

house-breaking after pre
paration made for causing
hurt, assault, &c.

house-breaking by night.
457 Lurking house-trespass • or Ditto Ditto

house-breaking by night in
order to the commission of
an offence punishable with
imprisonment.
458 L u r k ing house-trespass or Ditto Ditto

house-breaking by night,
after preparation made for
causing hurt, &c.
459 Grievous hurt caused whilst Ditto Ditto

committing lurking house-
trespass or house-breaking
II —continued.
AGAINST PROPERTY—continued,
pass— continued.
5 6 7 8

able or not. or not. Iudian Penal Code. triable.

able. description for 3 years Pres i d e n c y
Magistrate of
the first or
second class.
and fine.
Pre s i d e n c y
Magistrate or
Magistrate of
the first class.
gistrate of the
hrst or second
class.
and fine.

and fine.
Presidency Ma
gistrate or Ma
gistrate of the
first class.
Ditto 1 Ditto Transportation for life, Court of Session.
or l in plr isonment of
10 years and fine.
1
706 Schedule
CHAPTER XVII.-OFFENCES
Oj Criminal Tret
I 2 3 4

rant or a sum
without warrant narilyshall ordi- '
issue in
or not. the first instance. |
460 Death or grievous hurt caused May arrest with Warrant

by one of several persons out warrant. 1
jointly concerned in house
breaking by night, &c.
461 Dishonestly breaking open or Ditto Ditto

unfastening any closed re
ceptacle containing or sup
posed to contain property.
462 Being entrusted with any Ditto Ditto

closed receptacle containing
or supposed to contain any
property, and fraudulently
opening the same.
CHAPTER XVIII. -OFFENCES RELATING TO DOCU
465 Forgery Shall not arrest Warrant ...

without war
rant.
466 Forgery of a record of a Ditto Ditto ...

Court of Justice or of a Re
gister of Births, &c, kept
by a public servant.
467 Forgery of a valuable securi Ditto Ditto ■••

ty, will, or authority to
make or transfer any valu
able security, or to receive
any money, &o.
When the valuable security is May arrest with Ditto •••

a promissory note of the out warrant.
Government of India.
tl— continued.
AGAINST PKOPERTY-cow/ttrfwf.
pais— concluded.
5 6 7 8
Whether Whether
Not bailable . Not compound- Transportation for life, Court of Session.

able. or imprisonment of
10 years and fine.
Bailable Ditto Imprisonment of either Presidency Ma

first or second
class.
Ditto Ditto
Imprisonment of either Court of Session,
gistrate of the
faret or second
class.
MENFS AND TO TRADE OB PROPERTY MARKS.

gistrate of the
first class.
and fine.
■
Ditto Ditto Transportation for life, Court of Session.

or imprisonment of
10 years and fine.

i
1
7o8 Schedule
CHAPTER XVIII.--OFFENCES RELATING TO DOCUMENTS
1 2 3 4
Whether a
Whether the po warrant or a
Section. Offence. lice may arrest summons shall
without war ordinarily issue
rant or not. in the first in
stance
468 Forgery for the purpose of Shall not arrest Warrant
cheating. without war
rant.
469 Forgery for the purpose of Ditto Ditto

harming the reputation of
uny person, or knowing that
it is likely to be used for
that purpose.
471 Using as genuine a forged Ditto Ditto
document which is known
to be forged.
When the forged document May arrest with Ditto
is a promissory note of the out warrant.
Government of India.
472 Making or counterfeiting a Shall not arrest Ditto
seal, plate, &c, with intent without war
to commit a forgery punish rant
able under section 467 of
the Indian Penal Code, or
possessing with like intent
any such seal, plate, &c ,
knowing the same to be
counterfeit.
473 Making or counterfeiting a Ditto Ditto
seal, plate, &c, with intent
to commit a forgery punish
able otherwise than under
section 467 of the Indian
Penal Code, or possessing
with like intent any such
seal, plate, &c, knowing
the same to be counterfeit.
474 Having possession of a docu Ditto Ditto
ment, knowing it to be
forged, with intent to use it
as genuine ; if the document
is one of the description
mentioned in section 466 of
the Indian Penal Code.
II—continued. 709
AND TO TRADE OR PROPERTY MARKS—continued.
5 6 7 8

bailable or compoundable Indian Penal Code. triable.
not. or not.

gistrate of tho
first class.
and fine.
Ditto Ditto Punishment for forgery Same Court as

of such document. that by which
the forgery is
triable.
Ditto ... Ditto Transportation for life, Ditto.

or imprisonment of
eillier description for
7 years and fine.

description for 7 lyears
and tine.
Ditto Ditto Ditto ..i Ditto.

7io Schedule
CHAPTER XVIII.—OFFENCES RELATING TO DOCUMENTS
1 2 3
.
rant or a sum
police may arrest mons
Section. Offence. without warrant narilyshall ordi
issue in
If the document is one of the Shall not arrest Warrant

description mentioned in without w a r-
section 467 of the Indian rant.
Penal Code.
475 Counterfeiting a device or

mark used for authenticat
Ditto Ditto
ing documents described in
section 467 of the Indian
Penal Code, or possessing
counterfeit marked material.
476 Counterfeiting a device or

mark used for authenticat
Ditto Ditto
ing documents other than
those described in section
467 of the Indian Penal Code,
or possessing counterfeit
marked material.
477 Fraudulently destroying or(

defacing, or attempting to
Ditto Ditto
destroy or deface, or secret
ing, a will, etc.
477A Falsification of accounts Ditto Ditto
Of Trade and
482 Using a false trade or pro Shall not arrest Warrant

perty mark with intent to without war
deceive or injure any per rant.
son.
483 Counterfeiting a trade or pro Ditto Ditto

perty-mark used by another,
with intent to cause damage
or injury.
I
1 1 —continued. 71 1
AND TO TRADE OR PROPERTY MARKS—continued.
5 6 7 ! 8
Whether Whether
bailable or compoundable. Punishment under the By what Court
Bailable Not compound- Transportation for life, Court of Session.

able. or imprisonment of
years and fine.
Ditto Ditto ... Ditto Ditto.
Not bailable... Ditto ... Imprisonment of either Ditto.

and tine.

and fine.
Ditto Ditto Ditto ... . Ditto.
Property Marks.
Railable „. NTot compound- Imprisonment of either Presidency Ma

able. description for 1 year, gistrate or Ma
hret or second
class.
Ditto Ditto Imprisonment of either Ditte.

or fine, or both.
?12 Schedule
CHAPTER XVIII.-OFFENCES RELATING TO DOCUMENTS AND
Of Trade and Pro
2 i
1 3
1
rant or a sum
police my arrest mons
Section. Offence.
issue in
484 Counterfeiting a property- Shall not arrest Summons

mark used by a public ser without war
vant, or any mark used by rant.
him to denote the manufac
ture, quality, etc , of any
property.
485 Fraudulently making or hav Ditto Ditto

ing possession of any die,
plate or other instrument
for counterfeiting any public
or private property or trade
mark.
486 Knowingly selling goods Ditto Ditto

marked with a counterfeit
property or trade-mark.
487 Fraudulently making a false Ditto Ditto

mark upon any package or
receptacle containing goods,
with intent to cause it to be
believed that it contains
goods which it does not con
tain, etc.
488 Making use of any such false Ditto Ditto

mark.
489 Removing, destroying or de Ditto Ditto

facing any property-mark
with intent to cause injury.
1 1 —contin tie d. 713
TO TRADE OR PROPERTY MARKS—concluded.
petty Marks —concladert.
5 6 7 8
Whether Whether
bailable compounduble Punishment under the By what Court
or not. or not. Indian Penal Code. triable.
Bailable .. Not compound- Imprisonment of either Court of Session,

gistrate of the
first class.

or fine, or both.
Ditto Ditto Imprisonment of either Presidency Ma -

first or second
class.

gistrate of the
first or second
class.

first or second
class.
7"4 Schedule
CHAPTER SIX.- CRIMINAL BREACH
1 2 3 4
Whether the pro- Whether a war

rant or a sum
issue in
or not the first instance.
490 Being bound by contract to Shall not arrest Summons ...

render personal service without war
during a voyage or journey rant.
or to convey or guard any
property or person and volun
tarily omitting to do so.
491 Being bound to attend on or Ditto Ditto
supply the wants of a person
who is helpless from youth,
unsoundness of mind or
disease, and voluntarily
omitting to do so.
492 Being bound by contract to Ditto Ditto

render personal service for a
certain period at a distant
place to which the employe1
is convey' d at the expense
of the employer, and volun
tarily deserting the service
or refusing to perform the
duty.
CHAPTER XX.—OFFENCES
493 A man by deceit causing a Shall not arrest Warrant

woman not lawfully married without war
to him to believe that she rant.
is lawfully married to him
and to cohabit with him
in that belief.
494 Marrying again during the Ditto Ditto

lifetime of a husband or
wife.
495 Same offence with conceal Ditto Ditto
ment of the former marriage
from the person with whom
subsequent marriage is con
tracted.
1 1 —continued. 715
OF CONTRACTS OF SERVICE.
5 6 7 8

or not.
Bailable Compoundable, Imprisonment of either Presidency Mag

description for 1 month, istrate or Mag
or fine of 100 rupees, or istrate of the
both. first or second
class.
Ditto Ditto Imprisonment or either Ditto.

description for 3 months,
or fine of 200 rupees,
or both.

description for 1 month,
or fine of double the
expense incurred, or
both.
RELATING TO MARRIAGE.
Not bailable... Not compound- Imprisonment of either Court of Session.

able. description for lOyears
and fine.

and fine.
and fine.
716 Schedule
CHAPTER XX.—OFFENCES RELATING
1 2 3 4
Section. Offence. police may arrest rant or a sum
without warrant mons shall
or not. ordinarily issue in
the first instance.
496 A person with fraudulent in Shall not arrest Warrant

tention going through the without w a r-
ceremony of being married, rant.
knowing that he is not there
by lawfully married.
497 Adultery Ditto Ditto
498 Enticing or taking away cr Ditto Ditto

detaining with a criminal
intent a married woman.
CHAPTER XXL
500 Defamation Shall not arrest Warrant

without w a r-
rant.
501 Printing or engraving matter Ditto Ditto

knowing it to be defamatory.
502 Sale of printed or engraved Ditto Ditto
substance containing defam
atory matter, knowing it to
contain such matter.
CHAPTER XXII —CRIMINAL INTIMI
504 Insult intended to provoke a Shall not arrest Warrant

breach of the peace. without war
rant
505 False statement, rumour, etc., Ditto Ditto
circulated with intent to
cause mutiny or offence
against the public peace.
TO MARRIAGE—concluded.
5 6 7 8

compoundable Punishment umlerthe By what Court
Not bailable ... Not compound- I Imprisonment of either Court of Session.

and fine.
Bailable Compoundable, Imprisonment of either Court of Session,

or line, or both. gistrate or Ma
gistrate of the
first class.
description for 2 years, giatrate or Ma
first or second
, class.
- DEFAMATION.
Bailable Compoundable Simple imprisonment for 2 Court of Session,

years, or fine, or both. Presidency Ma
gistrate or Ma
gistrate of the
first class.
DATION, INSl JLT AND ANNOYANCE.
Bailable Compouiiduble Imprisonment of either Any Magistrate.

or fine, or both.
Not bailable... Not compound- Ditto Presidency Mag
able istrate or Mag
istrate of the
first class.
j
716 Schedule
CHAPTER XXII.—CRIMINAL INTIMIDATION,
1 2 3 4

first instance.
506 Criminal intimidation Shall not arrest Warrant

without w a r-
rant.
If threat be to cause death Ditto Ditto

or grevious hurt, etc.
507 Criminal intimidation by Ditto Ditto

anonymous communication
or having taken precaution
to conceal whence the threat
comes.
508 Act caused by inducing a per Ditto Ditto
son to believe that he will
be rendered an object of
Divine displeasure.
609 Uttering any word or making Ditto Ditto

any gesture intended to 1
insult the modesty of a ■
woman, &c.
610 Appearing in a public place, Ditto Ditto

&c, in a state of intoxica
tion, and causing annoyance
to any person.
CHAPTER XXIII. -ATTEMPTS
611 Attempting to commit of According as the According as the

fences punishable with offence is one offence is one
transportation or imprison in respect of in respect of
ment, and in such attempt which the which a sum
doing any act towards the police m a y mons or war
commission of the offence. arrest without rant shall or
warrant or not. dinarily issue.
1 1 —continued. 719
INSULT ASH ANNOYANCE —concluded.
6 7 8

or not.
Bailable Conipoundable Imprisonment of either Presidency Ma

first class.
Ditto Not compound- Imprisonment of either Court of Session,
gistrate of the
first class.
in addition to the
punishment under
above section
first or second
class.
1 year, or fine, or both. gistrate or Ma
gistrate of the
first class.
Ditto Ditto Simple imprisonment for Magistrate.

24 hours, or tine of 10
rupees, or both.
TO COMMIT OFFENCES.
According an Compomidable Transportation or impri The Court by

the o (fence when the of sonment not exceeding which the of
conteuipl a t - fence attemp half of the kngest fence attempt
e 1 by the ted is coni term, and of any des ed is triable.
offender is poundable. cription, provided for
bailable or the offence, or fine, or
not. both.
720 Schedule
I OFFENCES AGAINST
1 2 3 4
Whether a warrant
instance.
If punishable with death, May arrest with Warrant

transportation or imprison out warrant.
ment for 7 years or up
wards.
If punishable with imprison Ditto Ditto

ment for 3 years and up
wards but less than seven.
If punishable with imprison Shall not arrest Summons

ment for one year and up without war
wards, but less than 3 years. rant.
If punishable with imprison Ditto Ditto

ment for less than one year,
or with fine only.
II —concluded. 721
OTHER LAWS.
5 6 7 8
Whether bail Whether Punishment under the

coinpoundable By what Court
Not bailable ... Not compound- Court of Session.

able
Ditto Ditto * Court of Session,

Except in Presidency Ma
cases under gistrate or Ma
the Indian gistrate of the
Arms Act, 6rst class.
1878, section
19, which
shall be bail
able.
Bailable Ditto Court of Session,

Pres i d e n c y
Magistrate or
Magistrate of
the -first or
second class.
Ditto Ditto ... Any Magistrate.
»'
46
2 Schedule III
(See section 36).

ORDINARY POWERS OF PROVINCIAL MAGISTRATES.
I. — Ordinary Powers of a Magistrate of the Third Class,
1. Power to arrest or direct the arrest, and to commit to custody, a.
person committing an offence in his presence, section 64.
2. Power to arrest, or direct the arrest in his presence of, an offender,
section 65.
3. Power to endorse a warrant, or to order the removal of an accused
person arrested under a warrant, sections 83, 84 and 86.
4. Power to issue proclamations in cases judicially before him,
section 87.
5. Power to attach and sell property in cases judicially before him,
section 88.
6. Power to restore attached property, section 89.
7. Power to require search to be made for letters and telegrams,
section 95.
8. Power to issue search-warrant, seet'on 96.
9. Power to endorse a search-warrant and order delivery of thing
found, section 99
10. Power to command unlawful assembly to disperse, section 127.
11. Power to use civil force to disperse unlawful assembly, section 128.
12. Power to require military force to be used to disperse unlawful
assem- ly, section 130.
13. Power to record statements or confessions during a police-investi
gation, section 164.
14. Power to authorise detention of a person during a police-investi
gation, section 167.
15. Power to detain an offender found in Court, section 351.
16. Power to take cognizance of offence, although committed by
European British subject, and to issue process returnable before a
Magistrate having jurisdiction, section 445 .
17. Power to apply to District Magistrate to issue commission for
examination ot witness, section 506 (2).
18. Power to recover forfeited bond for appearance before Magistrate's
Court, section 514.
19. Power to make order as to disposal of property, section 517.
20. Power to sell perishable property of a suspected character, sec
tion 52 5.
I],—Ordinary Powers of a Magistrate of the Second Class.
1. The ordinary powers of a Magistrate of the third class.
2. Power to order the police to investigate an offence in cases in
which the Magistrate has jurisdiction to try or commit for trial,
section 155.
3 Power to postpone issue of process, section 202.
4. Power to order destruction of libellous and other matter, section 521.
III.—Ordinary Powers of a Magistrate of the First Class.
1. The ordinary powers of a Magistrate of the second class.
2. Power to issue search-warrant otherwise than in course of an
inquiry, section 98.
3. Power to issue search-warrant for discovery of persons wrongfully
confined, section 100.
Schedule III — continued. 723
4. Power to require security to keep the peace, section 107.
5. Power to require security for good behaviour, section 109.
6. Power to discharge sureties, section 126.
7. Power to make orders, etc., in possession cases, sections 145, 146
and 147.
8. Power to commit for trial, section 206.
9. Power to stop proceedings when no complainant, section 249.
10. Power to make orders of maintenance, sections 488 and 489.
11. Power to take evidence on commission, section 5 '3.
12. Power to recover penalty on forfeited bond, section 514.
13. Power to make order as to first offenders, section 562.
IV.—Ordinary Powers of a Subdivisional Magistrate.

1. The ordinary powers of a Magistrate of the first class.
2. Power to direct warrants to landholders, section 78.
3. Power to require security for good behaviour, section 110.
4. Power to make order* us to local nuisances, section 133.
5. Power to make orders prohibiting repetitions of nuisances,
section 143.
6. Po*er to make orders under section 144.
7. Power to depute subordinate Magistrate to make local inquiry,
section 148.
8. Power to order police-investigation into cognizable case, section 156.
9. Power to receive report of police-officer and pass order, section 173.
10. Power to hold inquests, section 174.
11. Power to issue process for person within local jurisdiction who has
committed an offence outside the local jurisdiction, section 186.
12. Power to entertain complaints, section 190.
13. Power to receive police-reports, section 190.
14. Power to entertain cases without complaint, section 190.
15. Power to transfer cases to a subordinate Magistrate, section 192.
16. Power to pass sentence on proceedings recorded by a subordinate
Magistrate, section 349.
17. Power to forward record of inferior Court to District Magistrate,
section 435 (2).
18. Power to sell property alleged or suspected to have been stolen,
etc., section 524
19. Power to withdraw cases other than appeals, and to try or refer
them for trial, section 528.
20. Power to order released convicts to notify residence, section 565.
V.—Ordinary Powers of a District Magistrate.
1. The ordinary powers of a Subdivisional Magistrate.

2. Power to require delivery of letters, telegrams, etc., section 95.
3. Power to issue search-warrants for documents in custody of postal
or telegraph authorities, section 96.
4. Power to require security for good behaviour in case of sedition,
section 108.
5. Power to discharge persons bound to keep the peace or to be of good
behaviour, section 124
6. Power to cancel bond for keeping the peace, section 125.
7. Power to try summarily, section 260.
8. Power to quash convictions in certain cases, section 350.
9. Power to hear appeals from orders requiring security for good beha
viour, section 406.
% Schedule III— concluded.
10. Power to hear or refer appeals from convictions by Magistrates of
t lie second and third classes, section 407.
11. Power to call for records, section 435.
12 Power to order commitment, section 436.
13. Power to order inquiry into complaint dismissed or case of accused
discharged, section 437.
14. Power to report case to High Court, section 438.
15. Power to try European British subjects, section 443.
16. Power to sentence European British subject to more than three
months' imprisonment or one thousand rupees fine, or both, section
446.
17. Power to appoint person to be public prosecutor in particular case,
section 492 (2).
18. Power to issue commission for examination of witness, sections 503,
f06.
19. Power to hear appeals from or revise orders passed under section
514, section 515.
20. Power to compel restoration of abducted female, section 552.
Schedule IV. 725
(See sections 37 and 38).
ADDITIONAL POWERS WITH WHICH PROVINCIAL MAGIS

TRATES MAY BE INVESTED.
f 1. Power to require security for good

behaviour in case of sedition, sec
tion 108 :
Power to require security for good
behaviour, section 110 :
3. Power to make orders as to local
nuisances, section ' 33 :
Power to make orders prohibiting
repetitions of nuisances, section
143 :
5. Power to make orders mnder section
144:
6. Power to hold inquests, section
174 :
Power to issue process for person
within local jurisdiction who has
committed an offence outside the
local jurisdiction, section 186 :
By the Lo 8. Power to take cognizance of offen
cal GOV ces upon complaint, section 190 :
ERNMENT. 9. Power to take cognizance of offen
ces upon police-reports, section
190 :
10. Power to take cognizance of offen
ces without complaint, section
190 :
11. Power to try summarily, section
2 iO :
12. Power to hear appe appeals from con-
victions by Magistrates
agist of the
second aud nd th"
third classes, section
POWERS WITH 407:
WHICH \MA- , 13. Power to sell property alleged or
UISTRATE OF j suspected to have been stolen, etc.,
TUE FIRST section 624 :
CLASS MAY 14. Power to order released convicts to
I E INVESTED notify residence, section 565:
15. Power to try cases under section
124A of the Indian Penal Code.
r 1. Power to make orders prohibiting
143 :
Power to make orders under section
By the 144:
DlST R 1 C T Power to hold inquests, section 174 :
Maoist-^ Power to take cognizance of offen
L RATE. ces upon complaint, section 190 :
Power to take cognizance of offen
ces upon police-reports, section 190 :
Power to transfer cases, section
192 :
726 Schedule IV— concluded.
1. Power to pass sentences of whipp
ing, section 32 :
2. Power to make orders prohibiting
143:
3. Power to make orders under sec
tion 144 :
f By the Lo 4. Power to hold inquests, section 174:
cal Gov 5 Power to take cognizance of offences
ernment. upon complaint, section 190 :
6. Power to take cognizance of offences
upon police-reports, section 190 :
without complaint, section 190 :
POWERS WITH 8. Power to commit for trial, sec
WHICH A MA tion 206 :
GISTRATE OF 9. Power to make order as to first
THE SECOND offenders, section 562.
CLASS MAY
BE INVESTED 1. Power to make orders prohibiting
repetitions of nuisances, section 143:
Bythe Dis 2. Power to make orders under sec
trict Ma tion 144 :
gistrate. 3. Power to hold inquests, section 174 :
upon complaint, section 190 :
5. Power to take cognizance of of
fences upon police-reports, section
190.
f1. Power to make orders prohibiting
143 :
2. Power to make orders under sec
tion 144 :
3. Power to held inquest, section 174 :
POWERS WITH By the Lo Power to take cognizance of offences
WHICH A MA cal Gov upon police-reports, section 190 :
GISTRATE OF , ernment. Power to commit for trial, section
THE THIRD 1 206 :
CLASS MAY r L Power to make orders prohibiting
BE INVESTED repetitions of nuisances, section 143 :
2. Power to make orders under section
By the Dis 144 :
trict Ma--{ 3. Power to hold inquests, section 174 :
OlSTRATE. 4. Power to take cognizance of offences
upon police-reports, section 190.
POWERS WITH^ 1
WHICH A SUB- By the Lo
DIVISIONAL S- cal Gov- \ Power to call for records, section 435.
MAGISTRATE ernmennt. |
MAY BE IN
VESTED.
J.
Schedule V.
(See section 554).

Forms.
I.—Summons to an accused Person.
(See section 68).
To of
Whereas your attendance is necessary to answer to a charge of (state
shortly the offence charged), you are hereby required to appear in person (or
by pleader, as the case may be) before the (Magistrate)
of , on
the day of . Herein
fail not.
Dated this day of ,18
(Seal).
(Signature).
II.—Warrant of Arrest.
(See section 75).
To (name and designation of theperson or persons mho is or are to execute the
warrant).
Whereas of stands
charged with the offence of (state the offence), you are hereby directed to
arrest the said , and to produce him
before me. Herein fail not.
Dated this day of . 18
(Seal).
(Signature).
(St-e section 76).
This warrant may be endorsed as follows :—
If the said shall give bail himself in the sum
of , with one surety in the sum of (or two sureties each in
the sum of ) to attend before me on the day
of and to continue so to attend until otherwise directed by me,
he may be released.
Dated this day , 18 .
(Signature).
III.—Bond and Bail-bond after arrest under a Warrant.

(See section 86).
I, (name) of , being brought before the District Magistrate
of (or as the case inay be) under a warrant issued to compel
my appearance to answer to the charge of , do hereby bind
728 Schedule V—continued.
myself to attend in the Court of on the day of

next, to answer to the said charge, and to continue so to attend
until otherwise directed by the Court ; and, in case of my making default
herein, I bind myself to forfeit to Her Majesty the Queen-Empress of India,
the sum of rupees
Dated this day of , 18 .
(Signature).
I do hereby declare myself surety for the abovenamed of
, that he ahull attend before in the Court of on
the day of next to answer to the charge on which he
has been arrested, and shall continue so to attend until otherwise directed by
the Court ; and, in case of his making default therein, I bind myself to for
feit to Her Majesty the Queen-Empress of India, the sum of rupees
(Signature).
IV.—PitOCLAMATlON REQUIRING TUB APPEARANCE OK A PERSON ACCUSED.

(See section 87).
Whereas complaint has been made before me that (name, description
and address) has committed (or is suspected to have committed) the offence
of , punishable under section of the Indian Penal Code, and it
has been returned to a warrant of arrest thereupon issued that the said (name)
cannot be found ; and whereas it has been shown to my satisfaction that the
said (name) has absconded (or is concealing himself to avoid the service of
the said warrant) ;
Proclamation is hereby made that the said of
is required to appear at (place) before this Court (or before me) to answer
the said complaint within days from this date.
(Seal).
(Signature).
V.—Proclamation requiring- the Attendance: of a Witness.

(See section 87)
Whereas complaint has been made before me that (mime, description and
address) has committed (or is suspected to have committed) the offence of
(mention the offence concisely) and a warrant has been issued to compel the
attendance of (name, description awl ad Ires* of the witness) before this Court
to be examined touching the matter of the said complaint ; and whereas it
has been returned to the said warrant that the said (name of witness) cannot
be served, and it has been shown to my satisfaction that he has absconded
(or is concealing himself to avoid the service of the said warrant) ;
Proclamation is hereby made that the said (na»i?) is required to appear
at (place) before the Court of on the day of next
at o'clock to be examined touching , the olfence complained
of.
(Seal).
(Signature).
Schedule V— continued.. 729
VI.—Order of Attachment to compel the Attendance of a Witness.

(See section 88)
To the Police-officer in charge of the Police-station at
Whereas a warrant has been duly issued to compel the attendance of
(name, description and address) to testify concerning a complaint pending
before this Court, and it has been returned to the said warrant that it cannot
be served ; and whereas it has been shown to my satisfaction that lie has
absconded (or is concealing himself to avoid the service of the said warrant);
and thereupon a Proclamation was duly issued and published requiring the
«aid to appear and give evidence at the time ami place
mentioned therein, and he has failed to appear :
This is to authorise and require you to attach by seizure the moveable
property belonging to the said to the value of rupees
which you may find within the district of and
to hold the said property under attachment pending the further order of this
Court, and to return this warrant with an endorsement certifying the manner
of its execution.
(Seal).
(Signature).
Order of Attachment to compel the Appearance of a Person Accused.

(Se>- eectio'i 88).
To (name and designation of the person or persons who is or are to execute the
warrant).
Whereas complaint has been made before me that (name, description ami
address) has committed (or is suspected to have committed) the offence of
punishable under section of the Indian Penal
Code, and it has been returned to a warrant of arrest thereupon issued that
the said (name) cannot be found ; and whereas it has been shown to my
satisfaction that the said (name) has abseo.ido 1 (or is concealing himself to
avoid the service of the said warrant), and thereupon a Proclamation was
duly issued and published requiring the said to appear to answer
the said charge within days ; and whereas the said is
possesse I of the following property other than land paying revenue to Gov
ernment in the village (or town) of , in the District of
, pi*., , and an order has been made for the attach
ment thereof ;
You are hereby required to attach the said property by seizure, and to
hold the sa:ne under attachment pending the further order of this Court, and
to return this warrant with an en lorsement certifying the manner of its
execution.
Dated this day of , 18
(Seal).
(Signature).
730 Schedule V— continued.
Ordeb authorising an Attachment by the Deputy Commissioner as

Collector.
(See section 88 ).
To the Deputy Commissioner of the District of
Whereas complaint lias been made before me thut (mime, description
and address) has committed (or is suspected to have committed) the offence
of punishable under section of the Indian Penal Code, and
it has been returned to a warrant of arrest thereupon issued that the said
(mime) cannot be found ; and whereas it has been shown to my satisfaction
that the said (name) has absconded (or is conce ding himself to avoid the
service of the said warrant) and thereupon a Proclamation was duly issued
and published requiring the said to appear to answer the said charge
within days, but he has not appeared ; and whereas the said
is possessed of certain land paying revenue to Government in
the village (or town) of in the district of ;
You are hereby authorised and requeue 1 to cause the said land to be
attached, and to be held under attachment pending the further order of this
Court, aud to certify without delay what you may have done in pursuance of
this order.
(Seal). (Signature).
VII.—W arrant in the first instance to bring up a Witness.
(See section 90).
To (name and designation of the Police-officer or other person or persons
icho is or are to execute tht warrant).
Whereas complaint has been made before me that of has
(or is suspected to have) committed the offence of (mention tlie. offence enn-
cisely), anil it appears likely that (name and description of witness) can give
evidence concerning the said complaint ; and whereas I have good and suffi
cient reason to believe that he will not attend as a witness on the hearing of
the said complaint unless compelled to do so :
This is to authorise and require you to arrest the said (name) and on the
day of to bring him before this Court, to be examined
touching the offence complained of.
Given under my hand and the seal of the Court, this day of
, 18 .
VIII.—Warrant to Search after Information of a particular Offence.
(See section 96).
To (name and designation of the Police-officer or other person or persons
who is or are to execute the warrant).
Whereas information has been laid (or complaint has been made) before
me of the commission ( or suspected commission) of the offence of (meniiim
the offence coiwisely), and it lias been made to appear to me that the produc
tion of (specify the thing clearly) is essential to the inquiry now being made
(or about to be made) into the said offence [or suspected offence) ;
Schedule V— continued. 73i
This is to authorise and require you to search for the said (the thing
specified) in the (describe the house or place, or part thereof, to which the search
is to be confined), and, if found, to produce the same forthwith before this
Court returning this warrant, with an endorsement certifying what you have
done under it, immediately upon its execution.
18 .
Seal). (Signature).
IX.— Warrant to Search Scspected Place of Deposit.
(See section 98)•

To (name ami designation of a Police-officer aboce the rank of a Constable).
Whereas information lias been laid before me, and on due inquiry
thereupon had I have been led to believe that the (describe the house or other
place) is used as a place for the deposit (or sale) of stolen property (or iffor
either of the other purposes expressed in the section, state the purpose in the
words of the section) ;
This is to authorise and require you to enter the said house (or other
place) with such assistance as shall be required, and to use, if necessary, reason
able force for that purpose, and to search every part of the said house (or
other place, or if the starch is to be confined to a part, specify the part clearly),
and to seize and take possession of any property (or documents, or stamps, or
seals, or coins, as the case may be) — [Add (irlien the case requires it) and also
of any instruments and materials winch you may reasonably believe to be
kept for the manufacture of forged documents, or counterfeit stamps, or false
seals, or counterfeit coin (as the case may be)], and forthwith to bring before
this Court such of the said tilings as may be taken possession of, returning
this warrant, with an endorsement certifying what you have done under it,
immediately upon it execution.
, 18 .
(Seal). (Signature*.
X. - Bond to keei> the Peace.

(See section 107).
WHEREAS I, (name), inhabitant of (place), have been called upon
to enter into a bond to keep the peace for the term of ,
I hereby bind myself n it to commit a breach of the peace, or do any act
that may probably occasion a breach of the peace, during the saiil term ; and,
in case of my making default therein, I hereby bind myself to forfeit to Her
Majesty the Queen-Empress of India, the sum of rupees
Dated this day of 18 ,
(Signature).
*J2)2 Schedule V— continued
XI.— Bond for Good Behaviour.

{See section* 108, 109 and 110).
Whereas I, (name), inhabitant of (place), have been called upon to
enter into a bond to be of good behaviour to Her Majesty the Queen- Empress
of India, and to all Her subjects for the term of (state the period), I hereby
bind myself to be of good behaviour to Her Majesty and to all Her subjects
during the said term ; an 1, in case of my nuking default therein, I bind
myself to forfeit to Her Majesty the sum of rupees
(Signature).
(Where a bund with sureties is to be exzeuted, add) —Wo do hereby docdare
ourselves sureties for the abovenained that he will be of good behaviour
to Her Majesty the Queen-Empress of India, and to all her subjects during
the said term ; and. in case of his making default therein, we bind ourselves
jointly and severally to forfeit to Her Majesty the sum of rupees
(Signature).
XII.—Summons on Information of a probable Breach of the Peace.
(See section 114).
To of
Whereas it has been made to appoar to me by credible information that
(state the substance nf the information), and that you are likely to commit a
breach of the peace (or by which act a breach of the peace will probably be
occasioned), you arc hereby required to attend in person (or by a duly autho
rised agent) at the Office of the Magistrate of on the day of
18 , at ten o'clock in the forenoon, to show cause why you should not he
required to enter into a I'ond for rupees [loh'n sureties are rcquirt^l
add, and also to give security by the bond of one (or two, as tlie cas'. may />?)
surety (or sureties) in the sum of rupees each (// more than one)
that you will keep the peace for the term of
, 18 .
XIII.—Warrant ok Commitment on FAiLUEt to kind Security to
keep the Peace.
(See section 123)
To the Superintendent (or Keeper) of the jail at
Whereas (name and aWresi) appe.irol before ma" in persin (or by his
authorised agent) on the day of in obedience to a summon?
calling upon him to show cause why he should not enter into a bond for
rupees with one surety (or a bond with two sureties each in
rupees ), that he, the said (name) would keep tho pe»ce for the
period of mouths ; and whereas an order was then made requiring
the said (mine) to enter into and find such security (state the security ordered
when it differsfrom that mentioned in the summons), and he has failed to
c omply with the said order :
Schedule V— continued. 733
This is to authorise and require you, the said Superintendent (or Keeper)
to receive the said (name) into your custody, together with this warrant, and
him safely to keep in the said jail for the said period of (term of imprison
ment) unless he shall in the meantime comply with the said order by himself
and his surety (or sureties) entering into the said bond, in which case the same
shall be received, and the said (mime) released, and to return this warrant
with an endorsement certifying the manner of its execution.
, 18 .
XIV.—Warrant of Commitment on Failure to find Security for Goon
Behaviour.
(See section 123).
Whereas it has been made to appear to me that (name and description)
has been and is lurking within the district of having no ostensible
means of subsistence (or. and that he is unable to give any satisfactory
account of himself) ;
or
Whereas evidence of the general character of (name and description)
has been adduced before me and recorded, from which it appears that he is
an habitual robber (or house-breaker, etc., us the ruse mat/ be) :
And whereas an order has been recorded stating the same and requiring
the said (name) to furnish security for his good behaviour for the term of
(state the period) by entering into a bond with one surety (or two or more
sureties, as the. cane may be), himself for rupees , and the said surety
(or each of the said sureties) for rupees , and the said (name) has
failed to comply with the said order and for such default has been adjudged
imprisonment for (state the term) unless the said security be sooner furnished ;
This is to authorise and require you, the said Superintendent (or Keeper)i
to receive the said ()iame) into your custody, togethor with this warrant, and
him safely to keep in the said jail for the said period of (term of imprison
ment) unless he shall in the meantime comply with the said order by himself
and his surety (or sureties) entering into the said bond, in which case the
same shall be received and the said (lutme) released, and to return this war
rant with an endorsement certifying the manner of its execution.
Given under my hand and the seal of the Court, this day
of , 18 .
XV.—Warrant to discharge a Person imprisoned on Failure

to give Security.
To the Superintendent
ndent (or Keeper) ofoi the jail at (or other
officer
fficer in whose custody the person is).
Whereas (name and description ofprisoner) was committed to your cus
tody under warrant of the Court, dated the day of , and has
"ince duly given security under section of the Code of Criminal Proeednr..
or
and there have appeared to me sufficient grounds for the opinion that he ea;
be released without hazard to the community ;
This is to authorise und require you forthwith to discharge the said («ia-(j
from your custody, unless he is liable to be detained for some other cause.
,18 .
{Seal). (Signature).
XVI.—Order for thk Removal ok Nuisakoes.

{See section 133).
To (name, description arid address).
Whereas it has been made to appear to me that you have caused an obs
truction (or nuisance) to persons using the public roadway (or other pubi*
place) which, etc., (describe the road or public place) by, etc., (state trhat it is
that causes the obstruction or nuisance), and that such obstruction (or nuisance)
still exists ;
or
Whereas it has been made to appear to me that you are carrying on t><
owner, or manager, the trade or occupation of tstate the particular trade -it
occupation and the place where it is carried on), and that the same is injurious
to the public health (</)• comfort) by reason (state briefly in what manner tlx
injurious effects are caused), and should be suppressed or removed to a differ
ent place ;
or
Whereas it has been made to appear to me that you aro the owner (or
are in possession of or have the control over) a certain tank (or well or ex
cavation) adjacent to the public way (d'sc ibe the. thoroughfare), and that the
safety of the public is endangered by reason of the said tank (or well or ex
cavation) being without a fence (or insecurely fenced) ;
or
Whereas, etc., etc. (as the case may be) ;
I do hereby direct and require you within (state the time allowed) to (state
what is required to be done to abate the nuisance) or to appear at
' in the Court of on the day of next and
to show cause why this order should not be enforced ;
or
I do hereby direct and require you within (state the time allowed) to cease
carrying on the said trade or occupation at the said place, and not again to
carry on the same, or to remove the said trade from the place wdiere it is non-
carried on, or to appear, etc. ;
or •
I do hereby direct and require yon within (stale the time allowed) to put
up a sufficient fence (state the h ind offence and the part to be fenced) or to
appear, etc. ;
or
I do hereby direct and require you, etc., etc. (as the case may be).
, 18 .
XVII.—Magistrate's Order constituting a Jury.

(See section 138).
Whereas on the day of , 18 , an order was issued to
(name) requiring him (state the effect of the order), and whereas the said (name)
has applied to me, by a petition bearing date the day of
for an order appointing a Jury to try whether the said recited order is reason
able and proper ; I do hereby appoint (the name*, etc., of the Jive or more
Jurors) to be the Jury to try and decide the said question, and do require the
said Jury to report their decision within days from the date of
this order at my office at
, 18 .
XVIII.- Magistrate's Notice and Peremptory Order after the

Finding by a Jury.
(See section 140)
To (mime, description and addres*.)
I hereby give you notice that the Jury duly appointed on the petition
presented by you on the day of have found that the order
issued on the day of requiring you (state substantially the
requisition in the order) is reasonable and proper. Such order has been made
absolute, and I hereby direct and require you to obey the said order within
(state the time allowed), on peril of the penalty provided by the Indian Penal
Code for disobedience thereto.
, 18 .
(SmI) (Signature).
XIX.—Injunction to provide against Imminent Danger pending

Inquiry ry Jury.
(See section 142.)
To (name, description ami address).
Whereas the inquiry by a Jury appointed to try whether my order issued
on the day of , 18 , is reasonable and proper is still pend
ing, and it has been made to appear to me that the nuisance mentioned in the
said order is attended with so imminent serious danger to the public as to
render necessary immediate measures to prevent such danger, I do hereby,
under the provisions of section 142 of the Code of Criminal Procedure, clireot
and enjoin you forthwith to (xtate plainly icliut is required to be done tlx a
temporary safeguard), pending the result of the local inquiry by the Jury.
Given under my hand and the teal of the Court, this day
of , 18 .
{Seal). (Signature)
XX.— Magistrate's Order prohibiting the repetition, etc.,

OF A NU1SANCK.
(See section 143).
To (name, description and address).
Whereas it has been made to appear to me that, etc., (state the proper
recital guided by Form No. XVI or Form No. XXI, as the case may be) ■
I do hereby strictly order and enjoin you not to repeat the said nuisance
by again placing or causing or permitting to be placed, etc., (as the case » ay
be).
,18 .
XXI —Magistrate's Order to prevent Obstruction, Riot, etc.

{See lection 144).
To (wamfj description and address).
Whereas it has been made to appear to me that you are in possession
(or have the management) of (describe clearly the proper y), and that, in digging
a drain on the said lan you are about to throw or place a portion of the
earth and stones dug up upon the adjoining public road, so as to occasion risk
of obstruction to persons using the road ;
or
Whereas it has been made to appear to me that you and a number of
other persons (mention the class nf persons) are about to meet and proceed in a
religious procession along the public street, etc., (as the case may be), and tbat
such procession is likely to lead to a riot or an affray ;
or
Whereas, etc., etc., (as the case may be) ;
I do hereby order you not to place or permit to be placed any of the
earth or stones dug from land on any part of the said road :
or
I do hereby prohibit the procession passing along the said street, and
strictly warn and enjoin you not to take any part in such procession (or, a*
the case recited may require).
, 18 .
{Seal). (Signature).
XXII.—Magistrate's Order declaring Party entitled to retain
Possession of Land, &c, in Dispute.
(See section 145).

It appearing to nie, on the grounds duly recorded, that a dispute, likely
to induce a breach of the peace, existed between {describe the parties by name
und residence or residence only if the dispute be betireen bodies of villagers') con
cerning certain {state concisely the subject of dispute), situate within the local
limits of my jurisdiction, all the said parties were called upon to give in a
written statement of their respective claims as to the fact of actual possession
of the Baid (the subject of dispute), and being satisfied by due inquiry had
thereupon, without reference to the merits of tho claim of either of the said
parties to the legal right of possession, that the claim of actual possession by
the said (name or names or description) is true.
I do decide and declare that he is (or they are) in possession of the said
(the subject of dispute) and entitled to retain such possession until ousted by
due course of law, and do strictly forbid any disturbance of his {or their)
possession in the meantime.
Given under my band and the seal of the Court, this day of
,18 .
XXIII.— Warrant of attachment in the Case of a Dispute as to thk

Possession of Land, etc.
(S«e section 146).
To the Police-officer in charge of the Police-station at [or, To
the Collector of ].
Whereas it has been made to appear to mo that a dispute, likely to in
duce a breach of the peace, existed between (describe the parties concerned by
name and residence, or residence only if the dispute be between bodies of vil
lagers) concerning certain (state concisely the subject of dispute) situate within
the limits of my jurisdiction, and the said parties were thereupon duly called
upon to state in writing their respective claims as to the fact of actual posses
sion of the said (the subject of dispute) ; and whereas, upon due inquiry into
the said claims, I have decided that neither of the said parties was in posses
sion of the said (the subject of dispute) [or I am unable to satisfy myself
as to which of the said parties was in possession as aforesaid] ;
This is to authorise and require you to attach the said (the subject of dis
pute ■ by taking and keeping possession thereof, and to hold the same under
attachment until the decree or order of a competent Court determining the
rights of the parties, or the claim to possession, shall have been obtained, and
to return this warrant with an endorsement certifying the manner of its
execution.
,18 .
(Signature).
47
XXIV.—Magistrate's Order prohibiting the doing of anything on
Land or Water.
(See lection 147).
A dispute having arisen concerning the right of use of (state couciaeiy
the subject of dispute) situate within the limits of my jurisdiction, the posses
sion of which land (or water) is claimed exclusively by (describe the person
or persons), and it appearing to me, on due inquiry into the same, that the
said land (or water) has been open to the enjoyment of such use by the
public (or if by an individual or a class ofpersons describe him or them) and (if
the use can be enjoyed throughout the year) that the said use has been enjoyed
within three months of the institution of the said inquiry (or if the u*» is
enjoyable only at particular seasons, say " during the last of the seasons at
which the same is capable of being enjoyed ");
I do order that the said (the claimant or claimants of possession) or any
one in their interest, shall not take (or retain) possession of the said land (or
water) to the exclusion of the right of use aforesaid, until he (or they) shall
obtain the decree or order of a competent Court adjudging him (or them) to
be entitled to exclusive possession.
, 18 .
XXV.—Bond and Bail-bond on a Preliminary inquiry before a

POLICE-OFFCER.
{Bee lection 169).
Ij (name), of , being chaiged with the offence of, , and
after inquiry required to appear before the Magistrate of
or
and after inquiry called upon to enter into my own recognizance to appear
when required, do hereby bind u yself to appear at , in the
Court of , on the day of next (or
on such day as I may hereafter be required to attend) to answer further to the
said charge, and, in case of my making default herein, I bind myself to for
feit to Her Majesty the Queen-Empress of India, the sum of rupees
(Signature).
I hereby declare myself (or we jointly and severally declare ourselves
and each of us) surety (or sureties) for the abovesaid , that he shall
attend at , in the Court of , on the day of next
(or on such day as he may hereafter be required to attend), further to answer
to the churge pending against him, and, in case of bis making default therein,
1 hereby bind myself (or we hereby bind ourselves) to forfeit to Her Majesty
the Queen-Empress of India, the sum of rupees
Pated this day of , 18 .
(Signature).
XXVI.— Bond to prosecute of give Evidence.
(See $ection 170).
I, (name), of (place), do hereby bind myself to attend at , in
the Court of , at o'clock on the day of next, and
then and there to prosecute (or to prosecute and give evidence) (or to give
evidence) in the matter of a charge of against one A B, and in
case of making default herein, I bind myself to forfeit to He? Majesty the
Queen-Empress of India, the sum of rupees
(Signature).
XXVII.—Notice of Commitment by Magistrate to Government

Pleader.
[See section 218).

The Magistrate of hereby gives notice that he has committed one
for trial at the next Sessions ; and the Magistrate hereby instructs
the Government Pleader to conduct the prosecution of the said case.
The charge against the accused is that, &c, (state the offence as in the
charge).
(Signature).
XXVIII.—Charges.
(See sections 221, 222, 223.)
(1)—Charges with one Head.
(a) I, [name and office of Magistrate, etc.], hereby charge you [name of
accused person] as follows :—
(h) That you, on at about the day of , at
waged war against Her Majesty the Queen-Empress of India, and there On PenalMl.Code,
by committed an offence punishable under section 121 of the Indian Penal
Code, and within the cognizance of the Court of Session [when the charge is
framed by a Presidency Magistrate,for Court of Session substitute High Court].
(c) And I hereby direct that you be tried by the said Court on the said
charge.
[Signature and seal of the Magistrate].
[To be substituted for (b)] :—
(2) That you, on or about the day of , at ^ 1M
, with the intention of inducing the Hon'ble A B, Member of the
Council of the Governor-General of India, to refrain from exercising a lawful
power as such Member, assaulted such Member, and thereby committed an
offonco punishable under section 124 of the Indian Penal Code, and within the
cognizance of the Court of Session [or High Court].
74Q Schedule V-~cotitinucd.
On section 161. (3) That you, being a public servant in the Department,
directly accepted from [slate the name], for another party [state the nam*-], a
gratification, other than legal remuneration, as a motive for forbearing to do
an official act, and thereby committed an offence punishable under section 161
of the Indian Penal Code, and within the cognizance of the Court of Session
[or High Court],
O.i section lor. (4) That you, on or about the day of
did [or omitted to do, as the case may be]
such conduct being contrary to the provisions of Act , section f
and known by you to be prejudicial to ,
and thereby committed an offence punishable under section 166 of the Indian
Penal Code, and within the cognizance of the Court of Session [or High
Court],
On section 193. (5) That you, on or about the day of .at ,in the
course of the trial of ,before "stated in evidence that "
," which statement you either knew oi believed to be false, or did
not believe to be true, and thereby committed an offence punishable under
section 193 of the Indian Penal Code, and within the cognizance of the
Court of Session [or High Court].
On (6) That you, on or about the day of iat ,connîtted
culpable homicide not amounting to murder, causing the death of ,
Court].
On lection 306; (7) That j ou, on or about the day of ,at .abetted
the commission of suicide by A B, a person in a state of intoxication, and
thereby committed an offence punishable under section 306 of the Indian
Court].
On section SB. (8) That you, on or about the day of ,at .volun
tarily caused grievous hurt to ,and thereby committed an offence
punishable under section 325 of the Indian Penal Code, and within the
cognizance of the Court of Session [or High Court].
On lection 30?. 1$) that yon, on or about the day of ,al ,robbed
[state the name] and there1 y committed an offence punishable under
section 392 of the Indian Penal Code, and within the cognizance of the
Court of Session [or High Court],
On section 398. {10) That you,on or about the day of ,at . ...
,com-
mitted dacoity, an offence punishable under section 395 of the Indian Penal
Code, and within the cognizance of the Court of Session [or High Court].
Tito cant* tried by Magistrates substitute " within my cognizance "fur
" witnin the cognizance of the Court of Sessions," and in (<•) omit " by the
said Court"].
(II)- Charges with two on more Heads.

(oJ /, [name and office of Magistrate, and c], hereby charge you [name of
accused person] as follows
(b) first.—That you, on or about the day of ,at .know

ing a coin to be counterfeit, delivered the same to another person, by name
Schedule V— continued, 741
.1 B. as genuine, anil thereby committed tin offence punishable under

section 241 of the Indian Penal Code, and within the cognizance pf the
Court of Session [or High Court].
Secondly.—That you, on or about the day of ,at ,know-
ing a coin to be counterfeit, attempted to induce another person, by name
A B, to receive it as genuine, anil thereby committed an offence punishable
under section 241 of the Indian Penal Code, and within the cognizance of
the Court of Session [or High Court].
(c) And I hereby direct that you be tried by the said Court on the said
charge.
[Signature and seal of the Magistrate].
[To be substituted for (o) ] : —
(2) First.—That you, on or about the day of ,at ,cow- On lections »02
mitted murder by causing the death of , and thereby committed an ,,ld •*•
offence punishable under section 302 of the Indian Penal Code, and within
the cognizance of the Court of Session [or High Court].
Secondly. -That you, on or about the day of , ot , by
causing the death of committed culpable homicide not amounting to
murder, and thereby committed an offence punishable under section 304 of
the Indian Penal Code, and within the cognizance of the Court of Session
[or High Court].
(3) First.—That you, on or about the day of , at ,com- q„ ae,.fjmg 379
mitted theft, and thereby committed an offence punishable under section 3i"9 ami »>2.
of the Indian Penal Co le, and within the cognizance of the Court of Session
[or High Court].
Secoiully.—That you, on or about the day of , at , com
mitted theft, having nude preparation for causing death to a person in order
to the committing of such theft, and thereby committed an offence punish
able under section 382 of the Indian Penal Code, and within the cognizance
of the Court of Session [or High Court].
Thirdly. — That you, on or about the day of , at com
mitted theft, having made preparation for causing restraint to a person in
order lo the effecting of your escape after the committing of such theft, and
thereby committed an offence punishable under section 382 of the Indian
Penal Code, and within the cognizance of the Court of Session [or Higli
Court].
Fourthly.—That you, on or about the day of , at , com
mitted theft, having made preparation for causing fear of hurt to a person in
order to the retaining of property taken by such theft, and thereby committed
an offence punishable under section 382 of the Indian Penal Code, and
within the cognizance of the Court of Session [or High Court].
(4) That you, on or about the day of , at ,in the courso Alternate**
of the inquiry into , before , stated in evidence that " ".and chiixon on
that you, on or about the day of , at , in the course of the *ecllon m
trial of , before , stated in evidence that " ," one of which
statements you either knew or believed to be false, or did not believe to be
true, and thereby committed an offence puuishuble under section 193 of the
Indian Penal Code, and within the cognizance of the Court of Session [or
High Court].
Sin cases tried by Magistrates substitute " within my cognizance " fur
1 in the cognizance of the Court of Session " and in (c) omit " by the tiaid
Court"].
742 Schedule V —continued.
(Ill)—Charge for Theft after previous Conviction.

I, {name and office of Magistrate etc.), hereby charge you (name of
accused person) as follows : —
That you, on or about the day of , a' , committed theft
Penal Code, and within the cognizance of the Court of Session (or
[nt^]™ ê case may be].
And you, the said (name of accused), stand further charged that you,
before the committing of the said offence, that is to say, on the day of
, had been convicted by the (state Court by which conviction was had) at
of an offence punishable under Chapter XVII of the Indian Penal
Code with imprisonment for a term of three years, that is to Bay, the offence of
house-breaking by night (describe the offence in the words used in the section
under which the accused was convicted), whicli conviction is still in full force
and effect, and that you are thereby liable to enhanced punishment under
section 75 of the Indian Penal Code.
And I hereby direct that you be tried, etc.
XXIX.—Warrant ok Commitment on a Sentence of Imprisonment

or Fine if passed by a Magistrate.
Whereas on the day of ,18 , (7iame of prisoner), the
(1st, 2nd, 3rd, as the case may be) prisoner in case No. of the Calendar
for 18 , was convicted before me (name ami official designation) of the
offence of (mention the offence or offences concisely) under section (or sections)
of the Indian Penul Code (or of Act ), and was sentenced to (state the
punishment fully and distinctly) ;
This is to authorise and require you, the said Superintendent (or Keeper),
to receive the said (jn-isoner's name) into your custody in the said jail
together with this warrant, and there carry the aforesaid sentence into
execution according to law
,18
XXX .—Warrant ok Imprisonment on Failure to recover Amends

dy Distress.
(See section 250).
Whkreas (name and description) has brought against (name and descrip
tion of the accused person) the complaint that (mention it concisely), and the
same has been dismissed as frivolous (or vexatious), and th- order of dis
missal awards payment by the said (name of complainant) of the sum of rupees
as amends ; and whereas the said sum has not been paid and cannot be
recovered by distress of the moveable property of the said (name of complain
ant) and an order has been made for his simple imprisonment in jail for the
period of days, unless the aforesaid sum bo sooner paid ;
Schedule V}—continued.
This is to authorise and require you, ihe said Superintendent (or Keeper)
to receive the said [name) into your custody, together with this warrant, and
him safely to keep in the said juil for the said period of {term of imprison
ment), subject to the provisions of section 69 of the Indian Penal Code, unless
the said sum be sooner paid, and on the receipt thereof forthwith to set him
at liberty, returning this warrant with an endorsement certifying the manner
of its execution.
,18
(Seal). [Signature)
XXXI.—Summons to Witness.
(See leitions 68 and 252).
To of
Wherkas complaint has been made before me that of has (or
is suspected to have) committed the offence of (state the offence concisely
with time and place), and it appears to me that you are likely to give material
evidence for the prosecution :
You are hereby summoned to appear before this Court on the
day of next at ten o'clock in the forenoon, to testify what you
know concerning the matter of the said complaint, and not to depart thence
without leave of the Court ; and you are hereby warned that, if you shall
without just excuse neglect or refuse to appear on the saidldate, a warrant
will be issued to compel your attendance.
Given under my hand and the seaUof ithe Court, this day
of , 18 .
(Seal).
(Signature).
XXXII.—Pbecept to District Magistrate to summon Jurors ani>

Assessors.
(See section 326).
To the District Magistrate of

Whereas a Criminal Session is appointed to be held in the Court-house
at on the day of next, and the names
of the persons herein stated have been duly drawn by lot from among those
named in the revised list of jurors and assessors furnished to this Court ;
you are hereby required to summon the said persons to attend at the said
Court of Session at 10 A. M. on the said date, and, within such date, to certify
that you have done so in pursuance of this precept.
(Here enter the names of Juror* and Assessors.)
Given under my hand and the seal of the Court, this dav
of , 18 . '
(Signature).
Hi Schedule V—continued.
XXXIII.—Summons to Assessor on Juror.

(See section 328).
To (name) of (place).
Pursuant to a precept directed to me by the Court of Session of
requiring your attendance as an Assessor (or a Juror) at the next Criminal
Session, you are hereby summoned to attend at the said Court of Session at
(place) at ten o'clock in the forenoon on the day of
next.
Given under my hand and the seal of office, this day of
18 .
(Seal). (Sigtutture).
XXXIV.—Warrant of Commitment under Sentence of Death.

(See section 374).
To the Superintendent (or Keeper) of the jail at ,
WnEREA8 at the Session held before me on the day of
18 , (name ofprisoner), the (1st, 2nd, 3rd, at the case may
be) prisoner in case No. of the Calendar at the said Session, was
duly convicted of the offence of culpable homicide amounting to mnrder
under section of the Indian Penal Code, and sentenced to suffer death,
subject to the confirmation of the said sentence by the Court
of ;
This is to authorise and require you, the said Superintendent (or Keeper),
to receive the said (prisoner's name) into your custody in the said jail, to
gether with this warrant, and him there safely to keep until you shall receive
the further warrant or order of this Court, carrying into effect the order of
the said Court.
,18 .
XXXV.—Warrant of Execution on a sentence of Death.
(See section 381).
Whereas {name of prisoner), the (1st, 2nd, 3rd, as the case may be)
prisoner in case No. of the Calendar at the Session held before me on
the day , 18 , has been by a warrant of this Court, dated
the day of , committed to your custody under sentence
of death ; and whereas the order of the Court of confirming
the said sentence has been received by this Court ;
This is to authorise and require you, the said Superintendent (or Keeper)
to carry the said sentence into execution by causing the said
to be hanged by the neck until he be dead, at (time and place of execution),
and to return this warrant to the Court with an endorsement certifying that
the sentence has been executed.
,18 .
Schedule V -continued. 745
XXXVI.—Warrant after a Commutation ok a Sentence.
(See lections 381 and 382y

Whereas ut a Session held on the day of
, 18 , (name ofprimmer), the (1st, 2nd, 3rd, as the casenuiy be) prisoner in
case No. of the Calendar at the said Session, was convicted of the
offence of , punishahle under section of the Indian Penal Code,
and sentenced to , and was thereupon committed to your custody ;
and whereas by the order of the Court of (a duplicate of
which is hereunto annexed) the punishment adjudged by the said sentence
has been commuted to the punishment of transportation for life (or as the
cage may be) ;
This is to authorise and require yon, the said Superintendent (or Keeper) ,
safely to keep the said (prisoner a name) in your custody in the said jail, as
by law is required, until he shall be defivere 1 over by you to the proper
authority and custody for the purp jse of his undergoing the punishment of
transportation under the said order,
or
if the mitigated sentence is one of imprw<mmfHi., s'ty, after the words " custody
in the said jail, " " and there to carry into execution the punishment of im
prisonment undo the said order according to law."
Given under my hand and the seal of the Court, this duy of
,W .
XXXVII.—Warrant to levy a Fine by Distress and Sale.

(See section 386).
To (name and designation of the Police-officer or otlier person or persons who is
or are to execute the warrant).
Whereas (name and description of the offender) was on the day
of 18 , convicted before me of the offence of (mention the offence
concisely), and sentence 1 to pay a tine of rupees , and whereas the
said (name), although required to pay the said tine, has not paid the same or
any part thereof ;
This is to authorise and require you to make distress by seizure of any
moveable property belonging to the said (name) which may be found within
the district of ; and, if within (sla'e the number of days or hours
allotted) next after such distress the said sum shall not be paid (or forthwith),
to sell the moveable property distrained, or so much thereof as shall be suffi
cient to satisfy the s lid tine, returning this warrant, with an endorsement
certifying what you have done under it, immediately upon its execution.
Civet] under my hand and the seal of the Court, this day of
,18 .
Schedule V —continued.
XXXVIII.—Warrant of Commitment in certain Cases of Contempt

when a Fine is imposed.
(See section 480).
To the Superintendent (or Keeper) of the jail at ,
Whereas ata Court holden before me on this day (name and description
of the offender) in the presence (or view) of the Court committed wilful coo-
tempt ;
And whereas for such contempt the said (name of offender) has been
adjudged by the Court to pay a fine of rupees , or in default to suffer
imple imprisonment for the space of (state the number of months or day*) ;
This is to authorise and require you, the Superintendent (or Keeper) of
the said jail, to receive the said (name of offender) into your custody, together
with this warrant, and him safely to keep in the said jail for the said period
of (term of imprisonment), unless the said tine be sooner paid ; and, on the
receipt thereof, forthwith to set him at liberty, returning this warrant with an
endorsement certifying the manner of its execution.
, 18
XXXIX.—Magistrate's or Judge's Warrant of Commitment of

Witness refusing to answer.
(See section 485).
To (name and designation of officer of Court).
Whereas (name and description), beiug summoned (or brought before
this Court) as a witness and this day-required to give evidence on an inquiry
into an alleged offence, refused to answer a certain question (or certain ques
tions) put to him touching the said alleged offence, and duly recorded, with
out alleging any jurt excuse for such refusal, and for his contempt has been
adjudged detention in custody for (term of detention adjudged);
This is to authorise and require you to take the said (name) into custody
and him safely to keep in your custody for the space of days un
less in the meantime he shall consent to be examined and to answer the
question asked of him, and on the last of the said days, or forthwith on such
consent being known, to bring him before this Court to be dealt with ac
cording to law, returning this warrant with an endorsement certifying the
manner of its execution.
Given under my hand and the seal of the Court, thiB day
of , 18.
XL.—Warrant of Imprisonment on Failure to pav Maintenance.

(See section 488).
Whereas (name, description and address) has been proved before me to
be possessed of sufficient means to maintain his wife (name) [or his child
(name), who is by reason of (state the reuson) unable to maintain herself (or
himself) ] and to have neglected (or refused) to do so, and an order has been
duly made requiring the said (name) to allow to his said wife (or child) for
maintenance the monthly sum of rupees ; and whereas it has been
further proved that the said (name) in wilful disregard of the said order lias
failed to pay rupees , being the amount of the allowance for the
month (or months) of : And thereupon an order was made
adjudging him to undergo simple (or rigorous) imprisonment in the said jail
for the period of ;
This is to authorise and require yeu, thj said Superintendent (or Keeper),
to receive the said (name) into your custody in the said jail, together with
this warrant, and there carry the said order into execution according to law,
returning this warrant with an endorsement certifying the manner of its
execution.
of ,18.
XLI.—Warrant to enforce the Payment of Maintenance by Distress

and Sale.
(Sie section 488").
To (name and designation of the Police-officer or other person to execute
the warrant).
Whereas an order has been duly made requiring name) to allow to
his said wife (or child) for maintenance the monthly sum of rupees ;
and whereas the said (name) in wilful disregard of the said order has failed
to pay rupees , being the amount of the allowance for the month (or
months) of ;
Thin is to authorise and require you to make distress by seizure of any
moveable property belonging to the said (name) which may be found within
the district of , and if within (state the number of days or hours
allowed) next after such distress the said sum shall not be paid (or forth
with t, to sell the moveable property distrained, or so much thereof as
shall be sufficient to satisfy the said sum, returning this warrant, with an en
dorsement certifying what you have done under it, immediately upon its exe
cution.
of , 18.
XLIl —Bond and Bail-bond on a Preliminary Inquiry before a

Magistrate.
(Ste sections 496 and 499).
I, (name), of (place), being brought before the Magistrate of (as the case
may be), charged with the offence of , and required to give security
for my attendance in his Court and at the Court of Session, if required, do
bind myself to attend at the Court of the said Magistrate on every day of the
preliminary inquiry into the said charge, and, should the case be sent for trial
by the Court of Session, to he, and appear, before the said Court when called
upon to answer the charge against me ; and in case of my making default
herein, I bind myself to forfeit to Her Majesty the Queen- Empress of India,
the sum of rupees
Dated this day of 18 .
(Signature).
Schedule V— continued.
I hereby declare myself (or We jointly and severally declare ourselves

and each of us) surety (or sureties) for the said (name) that he shall attend
at the Court of on every day of the preliminary inquiry into the offence
charged against him, and, should the case be sent for trial by the Court of
Session, that he shall be, and appear, before the said Court to answer the
charge against him, and, incase of his making default therein, I bind inyself
(or we bind ourselves) to forfeit to Her Majesty the Queen-Empress of India,
the sum of rupees
Dated this day of , 18
(Signature)
XL111.—Warrant to Discharge a person Imprisoned on Failure to

givjs Security.
{See section 500).
To the Superintendent (or Keeper) of the jail at (or oilier officer
in ichose custody the person is).
Whereas (>tume and description of prisoner) was committed to your
custody under warrant of this Court, dated the day of ,
and has since with his surety (or sureties) duly executed a bond under
section 499 of the Code of Criminal Procedure ;
This is to authorise and require you forthwith to discharge the said
(name) from your custody, unless he is liable to be detained for some other
matter.
XLIV. —Warrant of Attachment to enkorce a Bo.su.

(See section 514).
To the Police-officer in chargo of the Police-station at
Whereas (name,description andaddress of person) has failed to appear on
(mention the occasion^ pursuant to his recognizance, and has by such default
forfeited to Her Majesty the Queen-Empress of India the sum of rupees
(the penalty in the bond) ; and whereas the said (name ofperson) has, on due
notice to him, failed to pay the said sum or show any sufficient cause why
payment should not be enforced against htm ;
This is to authorise and require you to attach any moveable property of
the said (name) that you may find within the district of , by seizure
and detention, and, if the said amount be not paid within three days, to sell
the property so attached, or so much of it as may be sufficient to realise the
amount aforesaid, and to make return of what you have done under this war
rant immediately upon its execution.
,18 .
XLV.—Notice to Surety on Breach of a Bond.

{_S.ee section 514).
To of
Whereas? on the day of , 18 , you became surety
for (name) of (place) that he should appear before this Court on the
day of , and bound yourself in default thereof to forfeit the sum
of rupees to Her Majesty the Queen-Empress of India ; and
whereas the said (name) has failed to appear before this Court, an 1 by reason
of such default you have forfeited the aforesaid sum of rupees ;
You are hereby required to pay the said penalty or show cause, within
days from this date, why payment of the said sum should not be
enforced against you.
,18 .
(Seal). (Sigwitui e).
XLVI. —Notice to Surety of Forfeiture of Bond for good Behaviour.

{See section 514).
To of
Whereas on the day of , 18 you became surety by
a bond for (name) of (place) that he would be of good behaviour for the
period of and bound yourself in default thereof to forfeit
the sum of rupees to Her Majesty the Queen-Empress of India ; and
whereas the said (mime) has been convicted of the offence of (mention the
offence conc'mely) committed since you became such surety, whereby your
security-bond has become forfeited ;
You are hereby required to pay the said penalty of rupees , or
to show cause within days why it should not be paid.
,18 .
XLV II.—Warrant of Attachment against a Surety.

(See section 514.)
To of
Whereas (name, description and address) has bound himself as surety
for the appearance of (mention the condition of the bond), and the said (name)
has made default, and thereby forfeited to Her Majesty the Queen-Empress
of India, the sum of rupees (the penalty in the bond) ;
This is to authorise and require you to attach any moveable property of
the said (name) which you may find within the district of , by
seizure and detention ; i nd if the said amount be not paid within three days,
to sell the property so attached, or so much of it as may be sufficient to
realize the amount aforesaid, and make return of what you have done under
this warrant immediately upon its execution.
Give under my hand and the seal of the Court, this day of
,18 .
(Seal). {Signature).
750 Schedule V—continued.
XLVIII.—Warraht of Commitment of the Surety, ok an Accused

Person admitted to Bail.
(See section 514).
To the Superintendent (or Keeper) of the civil jail at
Whereas (name and description of surety) has bound himself as a surety
for the appearance of (state the condition of the bond)
and the said (name) litis therein made default whereby the
penalty mentioned in the said bond has been forfeited to Her Majesty the
Queen-Empress of India ; and whereas the said (name of surety) lias, on
due notice to liim, failed to pay the said sum or show any sufficient cause
why payment Bhould not be enforced against him, and the same cannot be
recovered by attachment and sale of moveable property of his, and an order
has been made for his imprisonment in the civil jail for (specify the period) ;
This is to authorise and require you, the said Superintendant (or Keeper),
to receive the said (name) into your custody with this warrant, and liiui
safely to keep in the said jail for the said (term of imprisonment), and to
return this warrant with an endorsement certifying the manner of its execu
tion.
, 18 .
XLIX—Notice to the Principal of Torfeitube of a Bond to keep

the Peace.
(See section 514).
To (name, description and address).
Whereas on the day of , 18 , you entered
into a bond not to commit, etc., (as in the bond), and proof of the forfeiture
of the same has been given before me and duly recorded ;
You are hereby called upon to pay the said penalty of rupees , or
to show cause before me within days why payment of the same
should not be enforced against you.
L.—Warrant to attach 'i he Property of the Principal on Bkeach

of a Bond to keep the Peace.
(See section 514).
To (name and designation of Police-officer), at the Police-station of
Whereas (name and description) did, on the day of
18 , enter into a bond for the sum of rupees , binding himself
not to commit a breach of the peace, etc. (as in the bond), and proof of the
forfeiture of the said bond has been given before me and duly recorded ; and
whereas notice has been given to the said (name) calling upon him to show
cause why the said sum should not be paid, and he has failed to do so or to
pay the said sum ;
Schedule V—continued. 751
This is to authorise and require you to attach by seizure moveable pro
perty belonging to the said (name) to the value of rupees which
you may find within the district of , and, if the said sum be not
paid within , to sell the property so attached, or so much of
it as may be sufficient to realise the same ; and to make return of what you
have done under this warrant immediately upon its execution.
, 18 .
LI.— Warrant of Imprisonment ok Breach of a Bond to keep

the Peace.
) See section 514).
Whereas proof has been given before me and duly recorded that (name
and description) has committed a breach of the bond entered into by him to
keep the peace, whereby he has forfeited to Her Majesty the Queen-Empress
of India, the sum of rupees ; and whereas the said (name) has
failed to pay the said sum or to show cause why the said sum rhould not be
paid, although duly called upon to do so, and payment thereof cannot be
enforced by attachment of his moveable property, and an order has been made
for the imprisonment of the said (name) in the civil jail for the period of
(term of imprisonment) ;
This is to authorise and require you , the said Superintendent (or Keeper)
of the said civil ja 1, to receive the (name) into your custody, together with
this warrant and him safely to keep in the said jail for the said period of (term
0/ imprisonment), and to return that warrant with an endorsement certifying
the mam er of its execution.
,18 .
LII.—Warrant of Attachment and Sale on Forfeiture of Bond for

Good Behaviour.
(See section 514).
To the Police-officer in charge of the Police-station at
Whereas (name, description and address) did, on the day of
, 18 , give security by bond in the sum of rupees for
the good behaviour of (name, etc., of the principal), and proof has been given
before me and duly recorded of the commission by the said (name) of the
offence of whereby the said bond has been forfeited ; and where
as notice has been given to the said (name) calling upon him to show cause
why the said sum should not be paid, and he has failed to do so or to pay the
said sum ;
This is to authorise and require you to ttach by seizure moveable pro
perty bolonging to the said (name) to the value of rupees which
you may find within the district of , and, if the said sum be
not paid within , to sell the property so attached, or so moth
of ft as may be sufficient to realise the same, and to make return of what
you have done under this warrant immediately upon its execution.
of , 18 .
LI II. —Waiiiunt of Imprisonment on Forfeiture of Bond ro«

Good Behaviour.
(See section 614).
Whereas (.name, description ami address) did, on the day of
, 18 , give security by bond in the sum of rupees
for the good behaviour of (name, etc., ofthe principal), and proof of the breach
of the said bond has been given before me and duly recorded, whereby the
said (name) has forfeited to Her Majesty the Queen-Empress of India, the
sum of rupees ; and whereas he has failed to pay the said sum or
to show cause why the said sum should not be paid although duly called upon
to do so, and payment thereof cannot be enforced by attachment of his move
able property, and an order has been made for the imprisonment of the said
(name) in the civil jail for the period of (term of imprisonment);
This is to authorise and require you, the Superintendent (or Keeper), to
receive the said (name) into your custody, together with this warrant, and him
safely to keep in the said jail for the said period of (term of imprisonment),
returniug this warrant with an endorsement certifying the manner of its exe
cution.
Given under my hand and the seal of the Court, this ftj
of , 18 .
INDEX
(To the Sections).
.. , ± Page.
Abatement—
Of appeal on death of accused ... ... ,„ 4gg
On deatli of appellant ... ... ... ... *" 4gg
From sentence of tine, how effected .. ... ... <>t 4gg
Abetment—
When security may be taken for, of offence as to breach of peace ... 75
Trial of, where ... ... ... ... ... 226
The charge of, may be tried jointly ;or separately) with the charge of the
commission of offence ... ... ... ... 331
Certain offences of, may be tried summarily ... ... ... 344
May be tried by Bench of Magistrates ... ... ... 348
When offence is coinpoundable ... ... ... ... 41)3
Abduction-
Enticing, or taking away married woman is coiupoundable ... ... 404
Power to compel restoration of females ... . ... ... 603
Absconding—
Proclamation for person ... ... ... ... ... 59
Attachment of property of person .. ... ... ... 60
Restoration of attached property of person .. ... ... 63
Record of evidence where accused .. ... ... ... 542
Absence—
Or illness of oflicer in charge of police-station how provided for .. ... 4
Of complain nt, Magistrate may discharge accused ... ... 343
Procedure owing to, of juror from any sufficient cause, what ... 357
Procedure owing to, of assessor or assessors from any sufficient cause, what... 358
Procedure owing to, of witness, what .. ... .. .. 402
In, of accused—record of evidence ... ... ... ... 542
Accidental Death-
Police to enquire and report ... ... ... ... ... 217
Accomplice-
Tender of pardon to ... ... ... ... ... 391
Magistrate tendering pardon and examining the person not to try the case
himself . ... .., ... ... ... 392
Power to direct tunder of pardon to, after commitment .. ... 394
Commitment of, to whom pardon has been tendered ... ... 395
Statement made on pardon may be given in evidence « hen pardon
withdrawn •• ... ... ... ... 395
No prosecution for giving false evidence in respect of such statement
without sanction of High Court ... ... ... 395
48
754 Index.
Accused—
Police not to detain, more than 24 hours ... ... ...
Unless under special order of a Magistrate
Statement of, to police not to be signed or admitted in evidence ... 1-
Accused or his agent not entitled to see police diaries ... ... z-
When provisions of sections 145 or 161 of Evidence Act will apply ... £-
Magistrate may dispense with personal attendance of ... ...
To give list of his witnesses ... ... ... ... i
Further list at Magistrate's discretion ... ... ... i
Further list to Clerk of the Crwn in trials before High Court ... :
Magistrate may examine witnesses of
Court may alter or add to the charge—every such alteration or addition to be
read and explained to ... ... ••• ••• ...
Withdrawal on remaining charges on conviction on one to amount to acquit
tal of, on such charges ... ... •• ... ...
Unless the conviction is set aside
Conviction of, on admission of truth of accusation ... ... ... S
Procedure when no admission is made .. ... .. •'-
Magistrate may require deposit before summoning witnesses for ... J'
When Magistrate may direct the acquittal of
When, may be released without acquittal or conviction
When compensation may be given to ... ... •■■ ... £1
When, may bo discharged
When, may bo charged ... ... ... — ... 9
The charge to be read and explained to the ... ... ... Si
If, pleads guilty, what ... ... ■•• — _ ... £'
On refusal of, to plead, to be required to state which of the witnesses
he wishes to cross-examine ... ... — ... ?;
The witness, so named to be recalled for examination ... ... $?
Rest of the prosecution witness to be then examined, &c. ... ... i:
When the, may enter upon his defence ... ... ••• ... it
Written statement of, to be filed with the record ■«
Magistrate to issue process for compelling production of evidence at instance
of ... ... ... ,., ... ... ... H.
When, has cross-examined or had the opportunity for so doing any witness
after charge was framed, what ... ... ... ... Jli
Unless it be for ends of justice ... ... ••• ... &
Reasonable expenses of witnesses ... ... •■• ... H
Acquittal of, on completion of trial ... ... ... ... H
Examination of, before Magistrate when receivable in evidence .. ... 3"
Acquittal of, on verdict of jury . .. ... ... S
When jury discharged, Judge may direct re-trial ... ... >
When no re-trial ordered to amount to an acquittal ... ... >
Of right to be defended by pleader ... ... ... ... 3S
Procedure where, does not understand proceedings ... ••• ... 5'
No oath to .. ... ... ... ••• ... S'
Examination of, by Court ... ... ... ... ... 3
No influence on, to induce disclosure ... ... ... ... 4>
When, may be remanded to custody ... ... ... ... +
Acquittal of, on composition of an offence ... ... ... i>
When, may demand re-trial—cases where part evidence recorded by another
Magistrate ... ... ... ... ... ... 41
Examination of accused how to be recorded ... ... ... 41
To hear judgment delivered ... ... ... ... 4!
Except when personal attendance dispensed with ... ... 4i
Acquittal of, on reference to High Court ... ... ... ... 4:
Appeal by Government from order of acquittal of ... ... ... 45
Index. 7$5
Page.
Accused — {continueJ)
Presence of, not necessary to hear appellate Judgment ... ... 462
Arrest of, on appeal to High Court by Government ... ... ... 464
Abatement of appeal on death of ... ... ... ... 465
Except an appeal from a sentence of fine ... ... ... 465
Acquittal of, on the ground of insanity at the time offence committed ... 499
Withdrawal of prosecution hy Public Prosecutor when to amount to an
acquittal ... .. ... .. ... ... 531
When to amount to a discharge ... ... ... ... 531
Keeord of evidence when, has absconded ... ... ... ... 542
Acquittal—
On withdrawal of remaining charges ... ... ... ... 332
In summons- cases, when ... ... ... ... ... 334
On non-appearance of complainant ... ... ... ... 334
On withdrawal of complaint ... ... ... ... ... 335
In warrant-case when Magistrate finds not guilty ... ... ... 343
On verdict of jury ... ... ... ... ... ... 378
On discharge of jury ... ... ... ... ... 383
On Advocate General staying proceeding .. ... ... ... 391
On composition of an offence ... ... ... ... 405
Judgment of, to state wtat ... ... ... ... 422
On submission of seutence for continuation ... ... ... 428
Act-
Includes illegal omission ... ... .. ... ... 5
No. XXXVI of 1858—Lunatic Asylum Act-
Section 4 ... ... ... ... ... ... 46
Sections 4 and 5 ... ... ••• ... ... 496
Section 18 ... ••■ ... ... ... ... 497
No. XLV of I860—Indian Penal Code-
Sections 73 and 74 ... ... ... ... ... 16
Sections 64, 65, 66, 67, 68, 69 and 70 ... ... ... 17, 18
Sections 145, 146, 151, 154, 155, 156, 159 and 187 ... ... 29, 30
Sections 145, 176 and 202 ... ... ... ... 32, 33
Sections 176, and 177 ••■ .. ... ... ... 34
Sections 186 and 225 ... ... ... ••■ ... 37
Section 187 ...
Section 174 ... •• •• ... ••• ••• 5'J
Section 188 ... ... - — — ... o0, 122
Section 26 ••• ••• ••• ••• ••• ... 72
Sections 339, 340 ... ... ... ■•• ... 73
Section 225A. — — ••• ... ... 106
Section 141 ... ... . ... — — 109
Sections 142, 145 and 151 ... ... ... ... 110
Section 52 ... ... ... ••• ••• >•• 112
Section 268 ... ... ... ••. ... — 133
Sections 433 and 434 ... ... - ... ... 171
Section 182 ... ... ••• ••• ••• ••• 172
Section 211 ... ... "" ••• ••• ••• 17*
Section 173 ... ... ... ••• ••• ••• 178
Section 174 .. ... ••■ ••• ••■ ••• 179
Section 191 ... . ■» ... ••• ..180,220
Section 330 ... ... - ■•• ». ... 194
756 Index.
Page.
Act—{continued)
No. XLV of 1860—Indian Penal Code—{continued).
Sections 331, 348 and 506 ... ... ... .. 193
Section 179 ... ... ... ... ... 218
Sections 193 and 174 ... ... ... ... 219
Sections 19 and 21 ... ... ... ... ... 272
Section 71 — ••• — ■•• ... 323
Section 72 ... ••• ••■ ••• .. 328
Section 70 ... ... •• ... ...4*), 431
Sections 54 and 55 ... ••• ... ••• ... 439
Section 84 ... ... — — ... 499
Section 75 ... •■■ ... ••• ... 542
No. V of 1861—Police Act-
Section 29 ... ... ... ... ... 3*
Section 34 ... ... ... ... ... 42
Section 31 ... ... ... ... 110
Section 23 ... ... ... ... ...169,
Sections 25, 30, 30A. and 31 ... ... ... 170
Section 24 ... ... ... ... ... HI
Section 44 ... ... ... ... ... l'i
Sections 25, 26 and 27 ... ... ... ... ... 554
No. VI of 1864—The Whipping Act-
Sections 2 and 5 ... ... ... ... ...432,433
No. V of 18G9—The Indian Articles of War-
Part III, clause (d) ... ... ... ... ... 43
No. XX of 1869—Indian Volunteers' Act-
Section 24 ... ... ... ... ... ... Ill
No. V of 1871—The Prisoners' Act-
Section 16 ... .. ... ... ... ... 429
Sections 17 and 18 ... ... ... ... ... 430
Sections 24, 26, 26, 27, 28 and 29 ... -.. ... ...438,4$'
No. XXVII of 1871—Criminal Tribes' Act-
Section 20 ... ... ... ... ... 40
No. I of 1872—The Evidence Act-
Sections 123, 124, and 139 ... ... ... ... 66
Sections 25, 26, 27 and 32 ... ... ... ... 185
Section 155 ... ... ... ,„ ... isg
Section 24 ... ... ... ,„ ... 193
Sections 25, 26, 27, 28 and 29 ... ... ... ... 194
Section 80 ... ... ... ... ... ... 201
Section 125 ... ... „. ... ... 210
Sections 145 and 159 ... ... ... ... ... 214
Sections 160 and 161 ... ... ... ... ... 215
Section 105 ... ... ... ... ... 303
Sections 143, 145 and 146 ... ... ... ... 340
Sections 138 and 139 ... ... ... ... 342
Sections 30 and 80 ... ... ... ... ... 3ft)
Sections 30 and 133 ... ... ... ... ... 392
Sections 24, 28 and 29 ... ... ... ... ... 401
Section 33 ... ... ... ... ... 535
No. X of 1873—The Oaths' Act-
Section 5 ... ... ... ... ... 413
Index. 757
Act —(.concluded) PaQE-

No. XV of 1873 -Municipal Act-
Section 35 42
No. IX of 1874— European Vagrancy Act-
Section 4 ... ... m
Section 5 ... ..." " " **
Sections 3 and 5 46
Rules under Act IX of 1874 *" '*' "" |g
No. XI of 1878—Indian Anne' Act-
Section 13
Section 12 42
Section 29 ... 49
271
No. I of 1179—General Stamp Act-
Proviso 2nd, section 34 ... ... ... ..• ••• 1*4
Section 69 ... ••• ••• ... ••• 271
No. XXI of 1879—Extradition Act-
Sections 15 and 16 ... ... ••• ... •■• 233
Sections 11, 12 and 13 ... ... ... ... 236
Sections 14 and 15 ... ... ••• ... ••• 237
No. XIV of 1882—Civil Procedure Code-
Section 503 ... ... ... ... ... ••• 61
Sections 504 and 505 ... ... ... ... ••• 62
Section 278 ... ... ... ... ... ... 62
No. IV of 1884—Indian Explosives Act-
Section 7 ... ... ... ...
67
No. XIV of 1887—Indian Marine Act-
Section 44 222
No. I of 1889—Metal Tokens' Act-
Sections 3 and 5 ,„ ... ... „. iM 49
Sectiou 5 ... „, ... „, >M „ oit
271
No. X of 1889 -Indian Ports' Act-
Section 60 223
No. IX of 1890—Indian Railways' Act—
Sections 131, 132, 133 and 134 ... ... ... ... 41
Section 131 ... ... ... ... ... ... 222
No. XI of 1890—Prevention of Cruelty to Animals-
Section 8 ... ... ... ... ... ... 66
No. XIV of 1895—Pilgrims Ships' Act-
Section 52 ... ... ... ... ... ... 222
No. VIII of 1897—Reformatory Schools' Act-
Sections 8 and 10 ... ... ... ... ... 43S
No. X of 1897—General Clauses Act-
Section 26 ... ... ... ... ... ... 441
Additional Sessions Judge-
Appointment of ... ... ■■■ ••• ••• ••• jj
Jurisdiction of ... ... ... ••• ••• ••• *
Rules as to disposal of urgent application by ... ••• ••• 10
Powers of ... ... ••• ••• " "• *j|
May try what cases ... ... ••• ••• ••• *46
Appeal to Court of Session may be heard by ... ... ... 447
758 Index.
Paoe.
Additional Sessions Judge— (continued)
Appeal from conviction by, to High Court ... ... ... 447
As to power of, to exercise jurisdiction over an European British subject 443
Adjournment—
For non-appearance of complainant ... ... ... ... 334
Of proceedings—power of Court ... ... ... ... 403
For specified time for return of commission ... ... 5411
On application to apply for transfer of case, effect of ... 557
Adult male member—
When summons may be served on ... ... ... ... S3
Adultery—
Who may complain of an offence of ... ... ... ... 277
When evidence proves a minor offence ... ... ... 277
Compoundablo ... ••■ ... ... ... 404
To be considered in maintenance case ... ... ... 51S
Affidavit—
Of service of summons, when admissible in evidence ... ... 53
In support of application to High Court for transfer of case ... ... 557
Not when the applicant is the Advocate-General ... ... ... Hi
To be used in High Court before whom to be sworn ... ... 531
Affay—
When public bound to assist Magistrate or Police-officer
Magistrate may issue order absolute in urgent cases of danger ...
Power of Local Government, by notification :in official Gazette prolonging
currency of order ... ... ... ... ... 135
Agent—
Of owner or occupier of land, to report certain cases ... ... .. g
Of accused not entitled—see police diaries ... ...
Aggregate Sentences—
In cases convictions of several offences—to he deemed single for purposes of
appeal ... ... ... ... ... ... ,„
Aid and Information to Magistrate, Police, 4c —
To Magistrate and Police ... ... ... ... m
To person other than Police-officer ... ... ... ^
Alteration—
Of charge on commitment without, or with imperfect, charge ... ^fi
Of charges, any time before judgment is pronounced ... ^
Of charge when trial may proceed immediately after ... ^
Of charge when new trial may be directed, or trial suspended ... ."
On, of charge right of prosecutor and accused to recall witnesses... "*|
Alternative Judgment—
When to be passed ... ... ... ... ^
Amendment—
Of verdict when by mistake a wrong verdict is delivered ... p<> 37,
Index. 759
Paoh.
Answer-
To questions put by Police-officer ... ... ... ... 180
What questions witness may decline to ... ... ... 180
Of jury to questions put by Judge ... ... ... ... 376
Such questions and answers to be recorded ... ... ... 376
Accused may add to, or explain his ... ••• ... ... 416
Of accused to be recorded in full ... ... ... ... 416
Apology-
Discharge of offender incases of contempt on, to satisfaction of Court ... 614
Appeal—
For the purpose of, the aggregate sentence to be calculated ... ... 19
Conviction on evidence recorded by different Magistrates may be reversed
without, when ... ... .. ... ... 410
Sessions Judge to inform accused sentenced to death the period within which
an, lies ... ... ... ... ... ... 427
No, except as allowed by the Code or any other law ... ... ... 444
From order rejecting application for restoration of property or sale-proceeds... 446
From order requiring security for good behaviour ... ... ,„ 44c
From sentence of Magistrate of second or third-class ... ... ,„ 447
Transfer of such, to first-class Magistrate empowered by Local Government 447
From sentence of Assistant Sessions Judge or Magistrate first-class to whom... 447
From sentence of Court of Session ... ... ... m 447
From sentence of Presidency Magistrate, when ... ... „, 448
No, certain cases when accused pleads guilty except as to extent or legality
of sentence ... ... ... ... 448
No, in petty cases or from certain summary convictions ... 449
Combination of punishment not calculated for purposes of ... ,., 449
Nor order for security to keep the peace ... ... M1 449
From conviction of European British subject ... ... it< 450
From acquittal by Local Government ... ... ... M) 450
From verdict of jury on matters of law only ... ... ,M 452
Petition of, may be presented by the appellant or his pleader ... ,„ 453
Procedure when appellant is in ]ail ... ... 453
Summary dismissal of ... ... ... ... >m 454
Notice of hearing of, to be given to appellant or his pleader ... 455
Procedure in hearing ... ... ... ... 456
Power of Court in disposing of ... ... ... ||| 456
Rules of judgment on, the same as that of Court of original jurisdiction.!! 462
Order of High Court on, to be certified to lower Court ,., 463
Suspension of sentence pending ... ... t#l " 463
Release of appellant on bail ... ... tM "j 463
Arrest of accused in, from acquittal .. ... ... 464
When additional evidence on, may be ordered by appellate Court " 464
Procedure where Judges of Court of, are equally divided ... 465
Judgment on, final ... ... ... ... \\\ 465
Abatement of, on death of appellant ... ... ... _ 455
Power of Sessions Judge and District Magistrate to order commitment " 472
From order against right as European British subject... ... 492
From conviction for contempt ... ... m 515
From order of forfeiture of bond lie to District Magistrate when such order
is passed by any Magistrate other than a Presidency Magistrate or District
Magistrate ... ... ... ... m m 547
From an order selling unclaimed property ... ... tM ggg
When High Court may order transfer of ... ... jjj 556
Decision of, by unauthorised Magistrate, void ... ... 56g
Payment of fine out of Court to be suspended pending ,„ 601
760 Index.
Paqk.
Appearance-
Process to compel, of person absconding ... ... ... 59
Disposal of attached property on failure of ... ... ... CO
Restoration of property on ... ••• ... ... ... 63
Issue of warrant in lieu of, or in addition to, summons to compel ... 64
Bond for, from person present in Court ... ... ... ... 65
Arrest on breach of ... ... ... ... ... 6a
Issue of summons or warrant for the, to show cause why he may not be bound
to keep the peace ... .. ••• ••• ••• 95
May be allowed to appear by a pleader ... ... ... 96
On, of the person, the Magistrate to proceed to enquire into the truth of the
information ... ... ••• . — 90
On application of surety for caneelment of his bond, summons or warrant to
issue for, of the person ... ... ••• ... ... 109
Power to compel, of person who has committed offence beyond local juris
diction ... ... ... ... ... ... 232
Appellant—
Or his pleader entitled to be heard before appeal is dismissed ... ... 454
What is reasonable opportunity to ... ... ••• ... 4d4
Notice of appeal to be given to ... ... ... ... 455
Abatement of appeal on death of ... ... ... ••• 4C5
Appellate Court-
May stay order for disposal of property ... ... ... ... 552
If, consider failure of justice has resulted from want of charge, what to order 574
May order the whole or a portion of fine to be applied for what pu rpose ... COO
Arms Act-
No. XI of 1878, sections 12, 13 and 14 ... ... ... 42, 49, 271
Offences under, may be enquired into or tried in a presidency-town when the
offender and all witnesses are found within such town ... ... 231
Army-
Police to arrest deserter from ... ... ... ... ... 40
Commissioned officer of, may disperse assembly ... ... ... Ill
Exemption of persons in, as jurors or assessors ... ... ... 387
Arrest-
Public when bound to assist in ... ... ... ... 28
How made ... ... ... ... ... „, 37
In making, may enter and search the place ... ... ... 37
Where ingress not obtainable ... ... ... ... ... 38
Limit of restraint on ... ... ... ... ... 38
May search the person on ... ... ... ... ... 39
Mode of searching women on ... ... ... ... ... 39
Power to seize weapon on ... ... ... ... 39
When police may, without warrant ... ... ... ... 39
Of vagabonds, &c. ... ... ... ... 45
May pursue offender, into other jurisdiction for purpose of ... ... 49
Forward on, at once to whom... ... ... ... ... 50
Not to detain more than 24 hours ... ... ... ... 50
Every, to be reported to Magistrate ... .. . ... 51
Discharge by police on, on bond or bail ... ... ... .. 51
By Magistrate for offence in his presence .. ... ... ••• 51
By Magistrate for offence for which he may issue a warrant ... ... 51
Index. 761
Paqb.
Arrest— (continued)
On escape or rescue ... ... ... ... ... 51
Court may direct security may be taken on ... ... ... 55
Who may make ... ... ... ... ... ... 56
On, what to follow ... ... ... ... ... 56,57
And if, made beyond the district in which warrant issued ... ... 58
When military or volunteer officer may ... ... ... ... Ill
By police of person designing cognizable offences when commission cannot
otherwise be prevented ... ... ... ... ... 171
No power by police to, for non-cognizable offence .. ... ... 176
Procedure on, by certain Magistrates beyond jurisdiction ... ... 233
Court can order, of person on bail for non-bailable offence ... ... 532
Assault-
On conviction for, Court may older security to keep the peace ... ... 75
Compoundable ... ... ... ... ... „. 403
Assessors-
No warrant for arrest of, may issue ... ... •.. ... 64
When same, may aid in trial of several cases ... ... ... 355
How many, to be chosen by Court ... ... ... ... 358
Procedure in absence of one, or all of the -. ... ... ... 358
View by, of place in which offence alleged to have been committed ... 36!)
When, may be examined as witness ... ... .. ... 370
To attend at adjourned sitting ... . ... ... 370
Opinion of each of the, to be recorded ... ... ... ... 383
Judge not bound to conform to the opinions of ... ... ... 383
Who liable to serve as .. ... ... ... ... 387
Who are exempt ... ... ... ... ... ... 387
List of, how made and how revised ... ... ... ... 38
How to be chosen and summoned ... ... ... ... 389
Form and contents of summons to ... ... ... ... 390
When Court may exempt from service ... ... ... ... 390
Assistant Chemical Examiner-
Report of analysis by, evidence ... ... ... ... 541
Assistant District Superintendent of Police-
May be appointed Special Magistrate ... ... ... ... 8
No Police-officer below rank of, to be Public Prosecutor ... ... 529
Assistant Sessions Judge-
Appointment of, by Local Government ... ... ... ... 7
Jurisdiction of ... ... ... ... ... ... 7
Subordinate to Sessions Judge ... ... ... ... 9
Sentences which may be passed by ... ... ... ... 15
May try such cases as the Local Government may direct or the Sessions Judge
of the Division may make over ... ... ... ... 246
Convictions by, appealable to Sessions Judge ... ... ,„ 447
When, has jurisdiction over European British subject ... ... 488
Attachment—
Of property of absconding offender how made ... ... ... CO
When sale may be hold ... ... ... ... ... 60
When restoration may be made ... ... ... ... 63
When delivery of nett proceeds of sale be delivered ... 63
762 Index.
Paoe.
Attachment—{continued)
Of immoveable property subject of dispute ,., ••• ••• Jw
Of moveable property of juror or assessor... ... ... ••• 390
Appeal against refusal to restore ... ... ••• ••• *^
On forfeiture of bond ... ... ••• ••• ••■ *™
If made by unautborised Magistrate ... ... ... ••■
Attempt to commit offence—
When constitutes breach of bond ... ... ... »•• J®
Trial of, with substantive offence ... ... ••■ ••• "J
When triable summarily ... . ••• ••• ••• *?,
When compoundable
Ball-
Court may direct to be taken on warrant of arrest ... _ ... ••• jjjj
May be taken on arrest for bailable offence in another jurisdiction ••• j*
When evidence insufficient police may take ... ... *"\h«S»
And in bailable offences ... .. ... ... ...212,5a-
May be admitted to, on reference to High Court when Judge disagrees with
verdict .. ... ... ... - 3>?
Pending appeal Appellate Court may release on .- ... — Jr?
And Presidency Magistrate in cases referred to High Court ... ••• y™
And High Court in original trial
District Magistrate or Sessions Judge in case referred for revision may order, *™
Magistrate may admit lunatic to, pending investigation or trial ••• ??:
Sessions Judge in proceedings taken under section 195 may admit to •■• J™
Also Civil and Revenue Courts ... ... ... ■•■ ?L»
In what cases other than non bailable, may be taken ... •••
When may be taken for non-bailable offence ... ... — t£
Amount of, how to be fixed ... ... ... ••• ?-»
Power of Sessions and High Court to adn it to ... ... 533
Terms of bond of accused and sureties, what ... 533
When fresh sureties may be required... ...
When sureties may apply for relense .. ... ... •••
Bailable offence—
Tefined ... ... 9
... ..« ...
Benches of Judges-
Procedure in case of difference of opinion in confirmation of capital cases
Procedure where Judges of appeal are equally divided 465
Benches of Magistrates—
Local Government may appoint and empower ... ... ••• „
Ordinarily to exercise what powers ... .. ... ••• „
Rules for guidance of, how made ... ... ... — „
Are subordinate to District Magistrate ... ... ... ••■ .j
Of Presidency, how formed ... ... ...
Of first-class, may be empowered by Local Government to try summarily
certain offences ...
Of second and third-classes, may be empowered by Local Government to try
summarily certain offences ... ... ... ••• ^
Clerk may be empowered to prepare records for ...
Bigamy—
Complaint of, to be made by person aggrieved by such offence ... "»
Index. 763
Page.
Bond—
For appearance before Magistrate—on refusal to give right name and address
when required by police ... ... ... ... 48
May be taken from person in Court, under what circumstances ... ... 65
On conviction for riot, &c, for keeping the peace may be required ... 75
If conviction set aside on appeal the, becomes void ... ... 75
From vagrants and suspected persons for one year •.. ... 83
For good behaviour from habitual offenders for 3 years 85
Circumstances under which amount of, to be fixed ... ... ... 103
Who to execute bond in cases of minors ... ... ... 103
Contents of ... .. ... ... ... 105
What is breach of ... ... ... ... ... 105
Power to reject sureties ... ... ... ... ... 105
On default to give security at time fixed ... ... .. ... 105
Power to release person imprisoned for failing to give security ••• ... 108
Who may cancel, to keep the peace or for good behaviour ... .. 108
How surety to, may obtain discharge ... ... ... ... 108
Release by Police-officer on taking, when evidence deficient ... ... 212
When, may be taken from complainant and witnesses by police... ... 214
From complainant and witnesses when case committed to Sessions and High
Court ... ... ... ... ... ... 301
For bailable offence demanded by Police or Court ... „. 532
When, for non-bailable offence may be taken ... ... ... 532
Circumstances under which amount of, to be fixed ... ... .. 533
On execution of, person to be released from custody... ... ... 534
Cash or Government Promissory Note may be received in lieu of ... 544
But not in case of, for goo 1 behaviour ... ... ... 544
Procedure on forfeiture of ... .. ... ... 544
Amount may be recovered by sale of moveable property ... ... 544
On failure, imprisonment in civil jail for 0 months ... ... 544
Portion of penalty may be remitted ... ... ... 544
Order appealable to Presidency or District Magistrate ... ... 547
Or may be revised by District Magistrate ... ... ,„ 547
Sessions or High Court may direct Magistrate to levy amount of... ... 547
To keep the peace if ordered by unauthorised Magistrate, void ... ... 565
If he cancels a, to keep the peace ... ... ... „. 566
Or revises an order under section 514 ... ... ... 566
Breach of thR|peace—
Public bound on demand to assist in the prevention of ... ... 28
On conviction for riot, assault, &c, security may be required ... ... 75
On information of probable, what procedure ... ... ... 77
Or likely to disturb public tranquillity ... ... ... 77
Before what Court proceeding to be taken ... ... ... 77
Procedure of Magistrate not empowered to act ... ... ... 77
Commencement of proceedings under sections 107, 108, 109 or 110 ... 91
Procedure as in summons-case ... ... ... ... 96
If necessary order for bond may be passed by Magistrate ... ... 103
From what date to have effect ... ... ... ... 105
Proceedings when to be laid before High Court or Court of Session ... 106
Procedure when security against, may be discharged .. ... ... 108
District Magistrate may cancel bond for keeping peace ... ... 108
Procedure where dispute concerning land, &c, is likely to cause ... 143
When concerning easementB, &c. ... ... ... ,„ 164
Breach of contract—
Complaint of offence on, by person aggrieved by such offence ... ... 276
764 Index
Page.
Buoy-
Police to prevent injury to ... ... ... ... 171
Canal-
Injury to, public bound to assist police in preventing ... ... 28
Cancel-
When Magistrate may, bond to keep the peace or for good behaviour ... 108
Surety-bond on application of surety .. ... ... 108
When Magistrate may, summary order in case of nuisance or apprehended
danger ... ... ... .. ... ... 135
Under what circumstance a Magistrate may, order for maintenance ... 518
Cancellation —
Of all or any of the powers of Magistrate by Local Government ... ... 2$
Of suspension or remission of sentences by Governor-General or Local Govern
ment ... ... ... ... ... 437
Of bond by Magistrate not empowered ... ... ... 566
Capit 1 Sentence—
Execution of ... ... ... ... ••• ■•• 429
Postponement of, on pregnant woman ... ... ... ... 429
Cause-
Contents of order to show, why security for good behaviour or for keeping the
peace should not bo taken ... ... 91
Accused may show, against order committing him on revision ... ••■ 472
Caution-
No, to prevent any person from making disclosure by police ... ... 193
Challenge to Jurors—
On name being called of jurors ... ... ... ... 356
Reasons of, to prevail, what ... ... ... ... 356
As to trials in High Court ... ... ... ... 356
Charge —
In proceedings for security for good behaviour need not t>e framed ... 96
In enquiry before commitment ... ... ... ... 294
To be read and explained to accused ... ... ... ... 294
What to contain— the offence, time, place and person and manner of commit
ting, the offence ... ... ... ... ..302,306
Language in which, to be written ... ... ... ••• 302
Words in, in sense of law ... ... ... .. ... 307
Effect of errors ... ... ... ... ... 307
Procedure on commitment without, or with imperfect ... ... 309
Court may alter or add to, when ... ... ... ... 312
Procedure on alteration ... ... ... ... ... ^13
Separate, for distinct offences ... ... .. ... ... 314
Three offences of same kind within one year, as to ... ... 319
As to offences falling within two definitions ... ... — 321
Where doubtful what offence committed ... ••• ... 327
What persons may be included in same 331
On conviction of one, others may be withdrawn ... ... ... 332
No formal, in summons-cases ... ... ... 333
To be framed when offence appears proved ,.. ... ... 338
No formal, in summary trials when not appealablo ... ... ... 349
No finding or sentence reversible by reason of error of omission in ... 576
Index. 765
Page.
Charge to Jury-
When, to be made .. ... ... ••• •■ ... 370
Duty of Judge ns to ••• ... ••• ••• ... 371
Chemical Examiner—
Report of, may bo used as evidence ... ... ... . 541
Child-
Legitimate or illegitimate, order of maintenance ... ... ... 517
Civil Court—
Cannot question order of Magistrate in nuisance case ... .. ... 113
Nor in respect of carrying out in good faith ... .. ... 130
Nor when passed in emergency ... ... ... 132
Possession as to land to be maintained until decree of ... ... ... 143
Order does not abate by reason of death of any of the parties .. 144
Order of Magistrate as to easements, &c, to be maintained until decree of ... 164
Sanction of, to proceedings for contempt, &c. ... ... ... 250
Compensation in Criminal Court to be taken into account by ... 337
Procedure in cases of contempt, &c. ... ... ... 502
May hold enquiry and commit to High Court or Court of Session ... ... 510
Procedure in such cases •.. ... ... ... 511
When, may punish summarily for contempt ... ... ...511,513
Right of, in respect of Magistrate's order restoring possession of immoveable
property ... ... . ... ... ... 553
Civil Force-
Use of, to disperse unlawful assembly ... ... ... ... [10
Civil Jail-
Person in confinement in, may be ordered to criminal jail when sentenced under
the Code 599
Effect of such confinement in 599
Civil Procedure Code—
Sectiou503 ... ... ... ... ... gj
Sections 504 and 505 ... ... ... ... ,,,
Section 278 ... ... ... ... ... ... 52
Civil Surgeon—
Police when to send body to, in cases of suicide, &c. ... ... ... 218
Examination by, of fact of unsoundness ... ... 4%
Examination of, in presence of accused, when evidence ... ... 54Q
What as to examination taken on commission ... ... ... 540
Claimant
Procedure in respect of properly seized by police ... ... .„ 553
Procedure when, appears ... ... ... ... 556
When property perishable... ... ... ... ,„ 556
Clerical Error—
In judgment may be corrected ... ... ... ... 425
Clerk of the Crown —
Defined ... ... ... ... ,„ 3
On commitment to High Court, to receive a further \i)t of witnesses for de-
fence 295
766 Index.
Page-
Clerk of the Crown— {continued')
After commitment Magistrate may leave to, to summons witness for the de
fence ••• ... •« ••• ••• ••• 299
Magistrate to send record, charge and exhibits to ••• ... ... 301
May frame, add, or alter charge when there is no charge or an erroneous or
imperfect charge ... •■• ••• ••• ••• 309
To prepare jury list ••• ••• ••• ••• 385
To swear affidavits for use in lligh Court ... — ••• m 595
Cognizable Case-
Defined ... ... ... ... — 3
Investigation by police of ... ••• ... ... — 176
Proceedings of police not to bo called in question ., . ... 177
When investigation may be dispensed with by police . ... .. 177
Power of Magistrate to hold investigation or preliminary enquiry ... 178
Cognizible offence-
Defined ... ... ... ... ... ••• 3
Police-officer may interpose to prevent ... ... ... ... 159
Information to Police-officer of, to be recorded ... ... ... 172
To be read over to informant ... ... ••• — 1J2
And signed by him ... ... ... ... — 172
Police-officer investigate into ... ... ... ... ■•• 176
When investigation of, not necessary ... ... ... 177
Coinage-
Procedure in case of previous conviction of offence against ... •■• ^07
Commission to Examine Witnesses-
High Court, Court of Session, Presidency Magistrate and District Magistrate
may in certain cases issue ... ... .. ... ... 534
To whom to be directed and how executed ... ... ... 534
When to be directed to Presidency Magistrate ... ... ... 538
Interrogatories may be sent with ... ... ... 538
Procedure of Magistrates who cannot grant ... ... ... 539
Return of executed, when receivable as evidence ... ... ... 539
Enquiry or return may be adjourned for a specified time ... ... 540
Commissioned Officer-
When may be called upon to disperse unlawful assembly ... ... 110
Duty of, commanding troops ... ... .. ... Ill
May disperse in absence of Magistrate ... ... ... Ill
No prosecution against, acting in good faith ... ... ... Ill
Commitment—
To Court of Session or High Court by what Magistrates ... ... 289
Reason for, to be recorded ... ... ... ... 29G
When, may be quashed ... ... ... ... ... "'98
And by whom ... ... .. ... ... 298
Of person charged with European British subject ... ... ... 298
After, made, the duty of Magistrate ... ... ... ... 299
If, made without charge or with imperfect or erroneous charge ... ... 309
To High Court of European British subject in case of Presidency Magistrate, 489
In respect of other cases, on reference by Sessions Judge ... ... 489
When Sessions Court may make, of cases mentioned in section 195 .. 502
And when Civil or Revenue Courts ... ... ... ... 502
If, made on proceedings held in wrong place ... ... ... 567
Index. 767
Page.
Committal—
On refusing to answer or to produce document ... ... ... 514
Commutation —
Of sentence of death on pregnant woman... ... ... ... 429
Of sentence of whipping ... ... ... ... ... 434
Compensation—
To accused in frivolous or vexatious accusations ... ... ... 336
Payment of, to be considered in subsequent civil suit ... ... 336a
To person groundlessly given in charge in Presidency-towns ... ... 604
Complainant—
When, to execute bond to appear before Magistrate ... ... ... 213
On refusal to be forwarded in custody ... ... ... 214
When to be examined by Magistrate ... ... ... ... 279
On commitment may be bound over tu appear and prosecute ... ... 301
Absence of, in summons-case ... ... ... ... ... 334
And in warrant-case ... ... ... ... ... 343
Subject to rules of Government for payment of expenses Court may order
payment ... ... ... ... ... ... 600
Complaint-
Defined... ... ... ... ... ... ... 3
Of breach of contract, defamation and offences against marriage... ... 276
Of adultery or enticing away a married woman ... ... 277
When, may be dismissed ... ... ... ... 284
Further enquiry may be ordered into any, which has been dismissed ... 475
Compounding Offence-
Provisions as to ... ... ... ... ... 403
By minors, idiots, and lunatics ... ... ... ... 404
Conclusive-
Proclamation of person absconding ... ... ... ... 59
Requirements of law as to proclamation ... ... ... 59
Confession —
No inducement to be offered by police ... ... ... ... 193
Any Magistrate who is not a Police-officer may record ... ... 200
How, to be recorded ... .. ... ... 200
No influence to be used to induce ... ... ... ... 401
Error in recording, how to be rectified when it does not prejudice the accused 570
Confinement-
Search for persons in wrongful ... ... ... ... 72
Of persons being members of an unlawful assembly ... ... ... 110
By whom ... ... ... ... ... ' ... 110
Of persons acquitted on ground of lunacy... ... •.. ... 500
Contempt of C >urt—
Procedure in certain cases of ... ... ... ... ... 511
Record in such cases ... ... ... ... ... 513
Procedure where more severe punishment is necessary ... 513
Local Government may declare Registrar and Sub-IIegistrar Civil Court for
cases of ... ... ... .. ... ... 314
The offender may be discharge ] on submission or apology ... ... 514
Person refusing to answer or produce document ... ... ... 514
Appeal lies in cases of ... ... ... ... ... 515
768 Index.
Page.
Contempt of Lawful Authority-
Prosecution for, in certain cases ... ... ... ... 250
Continuing offence-
Place of enquiry or trial of ... ... ... ... ... 229
Conviction—
On, for riot, assault, &c, security may be required ... ... ... 75
On commitment recorded by two Magistrates ... ... ... 409
Copy- -
Of deposition in foreign territory receivable under orders of Government as
evidence ... ... ... ... ... 240
Of charge to be furnished to accused free of cost ... ... ... 294
Of depositions of witnesses taken by Magistrate who is not a Presidency Mag
istrate after commitment to be given free of cost . ... ... 302
Of judgment to accused free of cost ... ... ... ... 427
In trials by jury, of heads of charge free . ... ... ... 427
Of order of High Court, on confirment to be sent to Sessions Court ... 428
Of order in maintenance case to be given free ... ... ... 527
Of application with grounds for transfer of case to be furnished to Public Pro
secutor ... ... ... ... ... ... 557
Any person affected by judgment or order entitled to a copy on payment ... 602
Corpse—
Disinterment of ... ... ... ... ,.. ... 221
Costs—
Order for, in cases of dispute as to immoveable property ... ... 168
Recoverable as fines ... ... ... ... jgg
Reasonable, of witnesses in summons-cases ... 333
Court-Martial—
Delivery to military authorities of persons liable to be tried by ... ... 603
Apprehension of such persons ... ... ... ... 603
Criminal Force-
Restoration of possession of immoveable property after dispossession by ... 553
Criminal Intimidation-
Triable summarily ... ... ... ... ... ... 404
Compoundable ... ... ... ... ... 405
Criminal Trespass-
Triable summarily... ... ... ... ... ... 404
Compoundable ... ... ... ... ... 405
Crown —
Right of, to grant pardons, reprieves, respites or remission of punishment ... 4')7
Dacoity—
May be enquired into or tried within the local limits of whose jurisdiction the
person charged is ... ... ... ••• ••• 227
D.-nger to Public Security-
Power of Military Officer to disperse assembly on apprcher-sion of ... Ill
Conditional order for removal of nuisances ... ••• ••• 112
By injunction in cases of imminent, when ... ... ... 13:.
Power of Magistrate to issue order absolute, in what cases ... ••• 134
Power of Local Government to extend the period of two mouths, when ... 135
Index. 769
Page.
Deaf and Dumb-
Procedure where accused doos uot understand proceedings ... ... 399
Death-
Sentence of, Ik Sessions Court subject to confirmation by High Court ... 15,427
On conviction of offence punishable with, if other sentence be passed reason
must be recorded ... .. ... ... ... 422
Sentence of, what to direct ... ... ... ... ... 425
To be notified to accused and lie be informed of the period for appeal ... 427
Sentence of, on pregnant woman may be postponed or commuted ... 420
Abatement of appeal by ... ... ... ... ... 465
Decay—
Disposal of property subject to, regarding which offence is committed 556
Defamation-
Complaint of, by some person aggrieved ... 270
Compoundable 404
Defamatory matter-
Order for destruction of 553
Defence-
List of witnesses for, on commitment 295
In summons-case 333
In wairant-case 339
Written statement put in, to bo recorded 339
Accused in, when allowed to cross-examine wittitMsu.t for pro.wctttion 3311
And when to obtain process for compelling attendance of witness 342
By pleader, accused entitled to make 398
Person incapable of making, for unsoundness of mind 4%
Definitions—
Advocate-General ... 3 Non-cognizable offence 4
Bailable offence ••• 3 Non-cognizable case 4
Charge ... 3 Offence 4
Chief Justice ... 3 Officer in charge of a police-station 4
Clerk of Crown 3 Place 4
Cognizablo offence ... 3 Pleader
Commissioner of Polico ... 3 Police-station 4
Complaint ... 5
... 3 Public Prosecutor 5
European British subject ... 3 Sub-division
High Court ... 4 Summons-case 5
Inquiry 5
... 4 Warrant-case 5
Investigation ... 4 Words referring to acts 5
Judicial proceeding ... 4 Words to have same meaning us in the
Indian Penal Code
Demeanour—
Remarks respecting, of witness
416
Deposit—
■ Of expenses of witnesses after commitment
Of witness in summons-case ... 299
In warrant-case „. ... ... 333
342
94
77° Index.
Page.
Deposition of Witnesses-
Correction of, or a memorandum of objection ... ... ... 414
On commission may be read in evidence ... ... ... 539
Of medical witness may be given in evidence ... ... ... 540
Taken in absence of accused, when receivable ... ... . 542
Deserter—
From Army, Navy or Indian Marine Service may be arrested by police with
out warrant ... ... ... ... ... ... 40
Detention-
Procedure for, of telegrams, letters, &c, when ordered by what Magistrate . 67
Of accused on discharge of jury ... ... ... ... 383
Of person present in Court ... ... ... ... 411
Unlawful, of European British subject, application to High Court ... 494
Diary, Police-
Extract from, to be sent to Magistrate ... ... ... ... 211
Police-officer to enter his proceedings on investigation in ... ... 214
May be sent for by Criminal Courts ... ... ... 214
Cannot be used as evidence ... ... ••• ... 214
Discharge-
On arrest by police, on bond or bail ... ... ■•• 51
Of person informed against, in proceedings to require security ... ... 105
For poaceable or good behaviour ... ... ... ... 108
In enquiry, when Magistrate finds not sufficient evidence ... ... 292
In warrant-case ... ... ... ... ••• 337
In High Court on verdict not unanimous .. ... ... ■•• 378
On, when commitment to be ordered ... ... •• ••• 472
When Local Government may order, in case of lunacy ... ••• 501
In case of Contempt of Court on submission or apology ... ■•• 514
Upon withdrawal of prosecution by Public Prosecutor ... ... 531
On giving necessary bail ... ... ... ... ... 532
Dismissal-
Summary, of complaint after investigation under section 202 ... ... 284
No bar to subsequent proceedings for other distinct offence ... .. 440
Power on revision to order further enquiry ... ... . 475
Dispersion—
Of unlawful assembly by command of Magistrate or Police-officer ... 109
Use of civil force in ... ... ... . ... HO
Of military force for ... ... ... ... ... HI
By Officer Commanding Troops at request of Magistrate ... ... Ill
By Commissioned Military Officei when Magistrate cannot be communicated
with ... ... .. ... ... .„ Ill
Disqualifying Interest—
Case in which Judge or Magistrate is personally interested ... ... 605
District Magistrate-
Local Government may appoint ... ... ... ... 7
Temporary vacancy in office of, officer succeeding to exercise what powers .. 7
May be authorised by Local Government to appoint Magistrate to Sub-Divi
sions • ••< •■• ••• HI 8
Index. 771
_ Paoe»
District Magistrate—(continued)
May make rules for guidance of Benches... ... ... ... 9
All Magistrates and Benches of Magistrates in districts subordinate to ... 9
In certain provinces, may be invested with special powers ... ... 14
May pass sentence3 authorised by law ... ... ... ... 18
May invest other Magistrates with certain powers ... ... ... 25
The ordinary powers of ... ... ... ... ... 25
May issue warrants directed to landholders ... ... ... 56
May require Postal or Telegraph office to produce and detain certain things, 67
On conviction for rioting, assault, &c, may require security to keep the peace, 75
On information of probable breach of the peace, &c, how to proceed ... 77
Whon, may institute case for security for good behaviour from vagrants and
habitual offenders ... ... ... ... ... 83, 85
When may order release of persons imprisoned for failing to give security .. 108
May cancel bond to keep the peace or for good behaviour ... . 108
May order removal of nuisance ... ... ... 112
May prohibit repetition or continuance of public nuisance ... . 133
When may issue order absolute for removal of nuisance, &c. ... ... 134
Procedure of, on disputed possession of land ... ... ... 143
And on easements, &c. ... ... ... ... ... 164
May order local enquiry regarding disputed possession or casement .. 168
Empowered to hold inquest ... ... ... ... 218
Power to issue process to accused beyond jurisdiction ... ... 23 S
May transfer enquiry or trial to subordinate Magistrate ... ... 244
May commit to Sessions or High Court ... ... ... ... 289
May try certain offences summarily ... ... ... 344
To summon jurors or assessors ... ... ... ... 389
May offer conditional pardon ... ... ... ... ... 391
But must record reason .. ... ... .. ... 392
When may order new trial without appcul ... ... ... 410
May endorse warrant for levy of fine in another jurisdiction ... ... 431
Conviction and sentence T>y, appealable to Sessions Court ... ... 447
Except in certain sentences ... ... ... ... 449
May call for record of inferior Court ... ... ... ... 467
May order commitment of persons discharged ... ... ... 472
May order further enquiry ... ... .. ... 475
When to report to High Court... ... ... ... ... 480
And suspend sentence ... ... ... ... ... 480
Optional with, to hear purties in revision ... ... .. 487
May order maintenance of wife or child ... ... .. 517
When may appoint Public Prosecutor in any trial before Sessions Court ••• 629
May issue commission for examination of witness ... ... ... 535
Order by, of forfeiture of bond not appealable ... ... ... 547
May sell unclaimed propertv when no claimant appears ... .. 556
Power to sell perishable property ... ... ... ... 556
When may withdraw and refer case to another Magistrate ... .. 562
Local Government may empower, to withdraw classes of cases . ... 562
Documents-
Power of Court to impound ... ... ... ... ... 74
Search for, by Police-officer ... ... ... ... ... 210
Easement—
When and what Magistrate may interfere in disputes concerning... ... 164
Subordinate Magistrate may be deputed to enquire into disputes concerning, 168
Costs of such enquiry to be met by whom ... ... ... 168
Index.
P AGE.
'Enhancement of Sentence—
Proceeding when subordinate Magistrate considers, called for ... ... 408
Escaped Convict -
Who may communicate information to police or Magistrate regarding resort of, 33
Warrant may be directed to land-holders, &c, for arrest of .. ... 56
Execution of sentence on ' ... ... ... .. ... 434
Escape from Lawful Custody-
Pursue and retaking on ... ... ... •■ ... 51
Europeans-
Jury for trial of, and Americans ... ••• ••• ... 495
When charged jointly with one of another race ... .. 4'J5
Summoning and empannolling of jurors on trial of ... ... ... 495
Conduct of criminul proceedings against ... ... ■•• .. 495
European British Subject-
Definition of ... ... ■•• ... ... ... 3
Appointment of, as Justices of the Peace ... ... „, ... 12
Recorder of Rangoon to be deemed a High Court in British Burma when
offenderisan .. ... ... ... ... 231
Liability of, for offences committed out of British India ... ... 235
Political Agent to certify or Local Government to sanction as to enquiry into
charge against ... ... ... ... ... ... 236
When person charged outside Presidency towns jointly with an, is to be com
mitted to High Court ... .. ... .. ... 298
Hjgh Court to namo the place of trial ... ... •. ... 391
W hat Magistrates may enquire into and try charges against .
Whon Assistant Sessions Judge may try au ... ... 4gg
Cognizance of an offence committed by an, may be taken by any Magistrate, 489
Sentences which may bo passed on, by Provincial Magistrates ... 439
What sentence may be passed by a District Magistrate on ... 489
When commitment of, is to be to Sessions Court and when to the High Court, 439
Trial of, for offences of which one is and the others are not punishable with
death or transportation for life ... ... ... 439
Sentence which may be passed by Sessions Court on ... ... 489
Procedure when Sessions Judge finds his powers inadequate in respect of •• 489
Right of, to claim jury before District Magistrate ... ... ... 490
District Magistrate to transfer case of, to another Court when jury cannot be
constituted ... ... ... ... ... ... 491
Trial of, with native jointly accused ... ... ... ... 4<J2
When native may claim separate trial ... ... ... 492
Procedure on claim of person to be dealt with ... ... 492
Failure by, to plead privilege equivalent to waiver of right ... ... 493
Trial of person not an ... ... ... .. ... 494
Right of, unlawfully detained to apply to High Court for order to be brought
before High Court . ... ... >M ... 494
Procedure of High Court on such application ... ... 494
Territories through which High Court may issue such order ... ... 494
Application of Acts conferring jurisdiction on Magistrates or Sessions Court
as to ... ... ... ■- ... ... ... 494
Jury for trial of Europeans or Americans ... ... .. t 495
Jury when European or American charged jointly with one of another race ... 495
Summoning and empannelling of jurors on trial of, and of European or Ameri
can ... ... ... ... ... ... 495
Conduct of criminal proceedings against, &c. ... ... ... 495
Index, 773
Page.
European Vagrants-
Sections 109 and 110 do not apply where they may be dealt with under Euro
pean Vagrancy Act
European Vagrancy Act-
No. IX of 1874, sections 3, 4 and 5 ... ... ... 44, 46, 88
Rules under
89
Evidence-
Report of local enquiry in disputed possession of land or easements may bo
read in
Deposition taken out of British India may, under orders of Local Government, 168
be made ... ... ... ... ■■•
Examination of accused before Magistrate to be 210
Of witness before Magistrate, when .. ... ... ... 360
362
Taken under conditional pardon may be received against the deponent ... 302
395
To be taken in presence of accused or his pleader ... ... ■•• 411
To be ordinarily taken in form of narrative ... ... ... 413
Objections as to correctness to be noted ... ... ••• *«
If given in language not understood by accused or pleader to be intcrpre-
. ted ... ... ... ... ... ... 415
Deposition taken on commission may bo read in ... ... ,., *>39
Deposition of medical witness taken before Magistrate on Sessions trial ... 540
Report of analysis receivable in ... ... ... ... 541
Taken in absence of accused ... . ... ,„ ... ... 542
Evidence Act-
See A ct No. 1 o/1872.
Examination—
Of persons by police orally and not recorded ... ... ...180,185
Of juror or assessor as witness, when ... ... 370
Of person accepting pardon ... ... ... ... ... 391
Of accused by Magistrate ... ... ... ... ... 399
How to be recorded ... ... ... ... ... 416
Of accused when insane ... ... ... ... ... 496
Medical evidence how to be recorded ... ... ... ... 540
Of witnesses in absence of accused, when . .. ... ... 642
Of accused if irregularly recorded how to be rectified ... ... 571
Power of Presidency Magistrate to order prisoner to be brought from jail for 600
Excavation-
Conditional order to fence in .. ... ... ... ... 113
Execution—
Of sentence of death ... ... ... ••• ... 429
Of sentence of whipping ... ... ... ••• ... 432
Of
Of sentence on
on person"klreadyV'sentencod,"for
escaped convict ... ••• offence ••• '"
r\c sentence
i another "'
Suspension of sentence pending appeal ... ... ... V' ^
Ex-officio Justices of Peace—
Who are...
12
Extradition Act-
See Act No. XXI of 1879.
774 Index.
Page.
Fact-
Appeal on matters of ... ... ■•■ ■•• ••• *®J
None where trial by jury ... ... ••• ••• ••• 452
False Seals-
Warrant of search for ... ••• .<• ••• ••• 7*
Father-
Order against, for maintenance of children ... ••• ••• 517
Of illegitimate children ... ... ... ••• ••• oW
Fema'e Child—
Power of Presidency or District Magistrate to compel restoration of ... 603
Females-
Mode of searching person of ... ... ... ... ... 39
Not liable to sentence of whipping ... ••. ... ... 434
Power to restore abducted ... ... ... ... ... 603
Fine-
Limit of power of Magistrate to ... ... ... ... 1»
In default of payment of, what punishment ... ... ... 16
Order as to costs in case of possession of land or easements ... ... 168
On juror or assessor—by attachment and sale of immoveable property ... 390
Warrant for levy of ... ... ... ••• •>■ 430
Effect of such warrant ... ... ... ... ... 431
Suspension of execution of sentence of imprisonment ... ... 431
Imprisonment in default of, when to take effect ... ... ••• 435
Maintenance allowance to be realized as .. ... ... ••• 517
First offenders-
Power of Court to release upon probation of good conduct ... ... 610
Foreign State-
Jurisdiction over offences committed in, liability of British subject for offences
committed in ... ... ... ,,. ... ... 235
Forfeiture of Bond-
Procedure on ... ... ... ... ... ... 544
All order of, by subordinate Magistrates appealable to District Magistrate ... 547
Also mbject to revision by District Magistrate ... ... ... 547
High Court or Court of Session may direct District Magistrate to levy amount
of ... ... ... ... ... ... ... 647
Forged Document-
Warrant of arrest for ,„ ... ... ... ... 70
Frivolous Com plaint-
Award of compensation in ,,, ... ... ... ... 336
Further Inquiry-
Power to direct, in sentence of death submitted for confirmation to High
Court . ... ... ... ... ... 427
Evidence how taken ... ... ... ... ... 427
Power of Magistrate to order .. ... ... •■• ... 428
Power of High Court or Sessions Court to order ... ... ... 475
In cases dismissed under section 203 ... ... >•• ... 475
Index. 775
Page.
General Stamp Act-
No. I of 1879, section 26 ... ». ... ». - 441
Good Behaviour—
Security for, from persons disseminating seditious matter ... ... 82
When Magistrate may institute proceedings for security for ... ... 91
Proceeding as in warrant-case 96
What order Magistrate may pass ... ... ... ... 103
From what date to commence ... ... ... ... 105
When proceedings to be laid before Sessions or High Court ... ... 106
. Magistrate may release persons imprisoned failing to give security for ... 108
Appeal from order requiring security for ... ... ... ... 446
Governor-General—
Appointment of Jutices of the Peace by .. ... ... ... 12
Ex-officio Justices of the Peace ... ... ... ... 12
Suspension and removal of Justices of the Peace by ... ... ... 13
Sanction of, for prosecution for acts done in dispersing unlawful assembly ... Ill
Prosecution.for offences against the State... ... ... ... 270
Power of, to suspend or remit sentences ... ... ... ... 437
May commute punishment ... ... ... ... ... 439
May appoint Public Prosecutor ... ... ... ... 529
Power of, to transfer criminal cases and appeals ... ... ... 562
When exercisable ... ... ... ... ... ... 562
Guilty-
Plea of, by accused to be recorded ... ... ... ... 354
Court may convict on such plea ... ... ... ... 354
Habeas Corpus-
Proceedings in High Court of the nature of ... ... ... 527
Habitual Offenders-
Security for good behaviour from ... ... ... ... 85
Enquiry as in warrant-cases .. ... .„ ... ... 96
Against coinage, stamp law or property, commitment for trial ... ... 407
Habitual Receiver—
Of stolen goods, arrest of ... 45
Habitual Robber-
May be arrested by officer in charge of police-station ... ... ... 45, 47
May be required to give security ... ... ... ... 86
Habitual Thief-
May be required to furnish security for good behaviour ... ... 85
Head cf Village-
Bound to report certain matters ... ... ... ... 35
Investigation into suicide, &c, and report thereof in the Madras and Bombay
Presidencies ... ... ... ... ... ... 218
High Court-
Defined... ... ... ... ... ... ... 4
Judge of, ex-officio Justice of the Peace ... ... ... ... 12
May pass any sentence authorised by law ... ... ... ... 15
Sentence of death subject to confirmation by ... ... ... 15
May by rulo appoint officer to sign summons ... ... ... 51
May require Postal or Telegraph Department to produce letter, telegram, &c. ... 67
On conviction for rioting, &c, may require security for peace ... ... 75
To decide, in cases of doubt jurisdiction ... ... „, ,., 231
Tjb Index.
Page.
High Court—(ctnttnutd)
, Ordinarily to try cases on commitment ... ... ... ... 248
Not to affect powers under Letters Patent ... ... 248
What class of Magistrates can commit for trial by ... ... ... 283
Can quash commitment on point of law ... ••• ... ... 298
On commitment to, what to be sent to Clerk of the Crown ... ... 301
Effect of material error in charge—may order re-trial or quash conviction ... 314
All trials before, to be by jury ... ... ■•■ ... ... 351
May try by jury, if the, so directs, cases transferred to it ... ... 351
Jury in cases before, to consist of 9 persona ... ... ... 355
When special jury—Presidency-towns... ... ... ... 356
Objection to jurors by accused or prosecution to the number of eight ... 350
Rules asto locking up jury ... ... ... ... .. 370
When veridiot of jury to prevail in ... ... ... ... 375
When verdict not unanimous ... ... ... ... 378
Advocate-General may stay proceedings before . ... ... 391
Place of holding sittings of ... ... ... ... ... 391
Power to direct pardon ... ... ... ... ... 394
Evidence in Chartered, how to be recorded ... ... ... 420
Sentence of death by Sessions Judge to be submitted to ... ... 427
Power to direct further enquiry or additional evidence ... ... 427
Power of, to confirm sentence or unnul conviction ... ... ... 428
Sentence of death to be signed by two Judges ••' ... .. 428
Procedure in case of difference of opinion ... ... .. 428
Order of, to be communicated to Court of Session ... ... ... 428
Government may require Judge of, to report on application praying for revision,
&c, of sentence ... ... ... ... 437
Government may appeal to, against order of acquittal ... .. ... 450
What order may be passed on such appeal ... ... ... 456
Reference to, on point of law by Presidency Magistrate ... ... 460
Order of, on such reference to be carried out ... ... ... 466
Judge of, may reserve and refer point of law ... ... 460
On point of law alter conviction on original jurisdiction ... ... 466
When may call for record of lower Court ... ... ... ... 467
When may order further enquiry ... ... ... 475
Report to, by Sessions Judge or District Magistrate ... ... ... 480
Powers of revising ... ... ... ... ... 481
Can enhance sentence , ... ... ... ... ... 481
Optional with, to hear parties or their pleaders ... „, ... 487
To consider statement by Presidency .Vagistrate of grounds of decision .. 487
Order of, to be certified to Court below ... ... ... ... 488
When European British subject to be committed direct to ... ... 489
Power of, in such trial to try the lesser offence .. ... ... 489
When such case committed to Sessions Court and the Judge finds his
powers inadequate ... ... ... ... ... 489
Right of European British subject to claim jury before Magistrate ... 490
Application to, on unlawful detention of European British subject ... 494
Procedure on such application ... ... ... ... 494
Powers of, in Habeas Corpus ... ... .. ... ... 527
When may admit accused to bail ... ... ... ... 533
When buil may be reduced ... ... ... ... 533
When may issue ■commission to examine witnesses ... ... ... 534
Can direc Magistrate to levy amount of bond forfeited ... ... 547
When may transfer case or itself try it ... ... ... ... 556
On finding failure of justice for want of charge ... ... ... 574
Affidavits to be used before, to be sworn before Clerk of the Crown ... 595
May make rule for inspection of records ... .,, ,,, ... 604
Index. 777
Page.
Hurt-
Compoundable ... ... ... _ ... 4Q3
When only by permission of Court ... '." 404
Husband-
Prosecution by, for offence of adultery ... .. ... ... 277
For enticing away a married woman ... ... ... ... 277
Special provisions with respect of rape by ... ... .. ... 610
Idiot—
Who may conipound_offence on behalf of an ... ... ... 404
Illegal Deten ion-
Order by High Court in nature of habeas corpus in case of .. ... 527
Illegitimate Children-
Order for maintenance of ... ... ... ... ... 517
Immoveable Property-
Procedure where dispute as to land, &c, is likely to cause breach of the peace 143
Enquiry as to possession of ... — ••• ••• J^J*J
Party in possession to retain possession until legally evicted... ... 144
Copy of order on whom served ... ... ... ••• J™
Power of Magistrate to attach subject of dispute ... ... ••• J43
Disputes concerning easements, &c. ... ... ... ••• J°4
Local enquiry in disputes of, and easements ••■ ... ••• J*J<*
Costs by whom to be paid and how recoverable ... ... •.. »<>8
Imprisonment—
Sentence of, by Sessions and Additional Sessions Judge ... ... 15
By Assistant Sessions Judge ... ... ... ... 15
Sentence of, which Magistrate may pass .. ... ... ••• 15
In default of fine ... .. ... ... 1G
Proviso in certain cases ... ... ... ... 17
Award of, on conviction of several offences at one trial ... ... 18
Commencement of period of, for default of security when accused already
undergoing ... ... ... ... ... 105
In default of security ... ... ... ... 105
For failure to give security to keep the peace shall be simple ... ... 105
For security for good behaviour may be rigorous or simple ... 105
Limit of, in summary trial ... ... ... ... ... 349
As tp execution of sentence of transportation or ... . ... 429
Direction of warrant for execution ... ... ... 429
Suspension of execution of sentence of ... ... ... ... 431
Commencement ,of sentence in case convict already undergoing ... 435
On refusal to answer questions or to produce document ... ... 514
O.i failure to pay the maintenance allowance ... ... ... 517
Power of Local Government to appoint place of ... .. ... 599
Indian Arms Act-
No. XI of 1878 ... ... . ... 42, 49, 271
Indl-n Marine Act-
No. XIV of 1887, section 44 ... ... ... ... ... 222
778 Index.
Paol
Indian Penal Code-
Words to have same meaning as in ... • •• ... ••• *
Trial of offences under ...
See Act XLV of 1S60.
Indian Ports Act-
No. X of 1889, section 60 ... ... ... ... ... 223
Indian Railways Aol—
No. IX of 1890 ... ... ... ... ... ... 41,?22
Indian Volunteers Act-
Magistrate or officer in charge of police-station may require aid of, for dispers
ing unlawful assemblies ... ... ••• ••• ••• JJj
Act No. XX of 1869, section 24 ... ... ... - 111
Inducement—
Not to be offered by police to obtain confession ... ... •■•
Influence-
Not to be used to induce accused to make disclosure ... ... M
Information—
To Magistrate as to the likelihood of a person committing a breach of the
peace ... ... ... ... ••• ••■ "
As to vagrants and suspected persons... ... ... ... 83
As to habitual offenders ... .. ... ... ... 85
Enquiry as to truth of, regarding apprehended breach of peace ... ... 96
Of design to commit cognizable offence to be communicated ... ... 171
Relating to commission of cognizable offence to be reduced into writing ... 172
Oral, in cognizable cases ... ... ... ... «. 172
As to information in non-cognizable cases . ... ... W*
Investigation in cognizable cases . ... ... ... »"*
In non-cognizable cases ... .. ... ... «. 176
Procedure where commission of cognizable offence suspected ... ... 177
Wheri local enquiry dispensed with ... ... ... ... 1"
Where Police-officer in charge sees no sufficient grounds for investigation 177
Injunction-
Pending enquiry in nuisance cases ... ... ... ... 132
In urgent cases of nuisance .. ... ... ... ... 134
May be made fx parte ... ... ... ... ... 134
Inq est—
Police enquiry and report ... ... ... .„ ,„ 217
In case of death in police custody ... ... ... ... 221
Holding of, under section 176 by Magistrate not empowered ... ...
Inquiry-
Definition of ... ... ... ... ... ... 4
By Magistrate into case of death in police custody ... ... ... 221
Ordinary placo of, and trial of offences ... ... ... ... 222
Where belonging to a gang of dacoits may he enquired into or tried ... 227
Where offence of criminal misappropriation and criminal breach of trust may
be enquired into or tried ... ... „, ... .,, 227
Index. 779
Page.
Inquiry—{continued)
Where offence of stealing may be enquired into or tried ... ... 227
Place of enquiry or trial when scene of offence is uncertain ... ... 229
Or not in one district ... ... ... ... ... 229
Or where offence is continuing ... ... ... ... 229
Or consists of several acts ... ... ... ... 229
Where offences committed on a journey may be enquired into or tried ... 230
Against Railway, Telegraph, Post Office and Arms Act may be enquired into
or tried ... ... ... ... ... ... 231
High Court to decide in case of doubt, district where enquiry or trial shall take
place ... ... ... ... ... ... 231
When Political Agent to certify for, into offence ... 235
Inquiries and Trials-
Tender of pardon to accomplice ... ... - ... 391
Every person accepting tender of pardon to be examined as a witness ... 391
Magistrate to record reason for tendering pardon ••• ... 391
Magistrate tendering pardon not to try case himself .. ... ... 391
When pardon may be tendered after commitment ... ■•. ... 394
Commitment of person to whom pardon has been tendered ... ... 395
Right of accused to be defended by a pleader ... ... ... 398
Procedure when accused does not understand proceedings ... ... 399
Power of Court to examine accused .. ... ... ... 399
No oath to be administered ... .. ... ... 399
No influence to be used to induce disclosure ... ... ... 401
When Court may postpone proceedings ... ... ... ... 402
When remand accused ... ... ... ... ... 402
Reasonable cause for remand ... ... ... ... 402
Length of time of remand ... ... .. ... 402
Compounding offences ... ... ... ... ... 403
Procedure of Magistrate in cases which he cannot dispose of ... ... -406
Procedure when after commencement of enquiry or trial Magistrate finds case
should be committed ... ... .. ... ... 407
Trial of person previously convicted of offences against coinage, stamp
law or property ... ... ... ... ... 407
Procedure when Magistrate cannot pass sentence sufficiently severe ... 408
Conviction or commitment on evidence partly recorded by one Magistrate and
partly by another ... ... ... ... ... 409
Petention of offenders attending Court ... ... ... ... 411
Court to be open to public ... ... ... ... ... 411
Evidence to be taken in presence of accused or his plsader ... ... 411
Manner of recording evidence ... .. ... ... 412
Record in summons-case and in trials of certain offences by first and second
class Magistrates 412
Magistrate to make memorandum of substance of evidence of each wit
ness ... ••• ... ... ... ... 412
Record in other cases outside Presidency-towns ,., ... ... 412
When evidence is given in English ... ... ... ... 412
Memorandum when evidence not taken down by Magistrate or Judge ... 412
Language of record of evidence ... ... ... ... 413
Procedure in regard to such evidence when completed ... ... 414
Interpretation of evidence to accused or his pleader ... ... ... 415
Record of evidence in Presidency Magistrate's Court... ... ... 416
Remarks as to demeanour of witnesses ... ... ... ... 416
Examination of accused how recorded ... ... ... ... 416
Record of evidence in High Court ... .„ ... ... 420
Index.
Page.
Insane-
Prisoner not, but unable to understand proceedings ... ... ••• 399
Interrogatories-
May be sent with commission to examine witness ... ■•• ... 538
Invalid Proceedings-
Proceedings against one who is not an European British subject as such not an, 494
Which do not vitiate proceedings ... ... ... ... 564
And which vitiate proceedings ... ... ... ... 5t}5
Proceedings held in wrong pla-e, unless it has occasioned failure of justice ... 567
When irregular commitments may be validated ... ... ... 569
On confession irregularly recorded ... ... .. 570
Effect of omission to ask if accuse 1 is an European British subject ... 574
Effect of omission to prepare charge ... ... .. ... 574
Trial by jury of offence triable with assessors ... ... .. 575
By assessors of offence triable by jury ... ... ... 575
Because of defect in complaint ... ... ... ... 576
In summons or warrants ... ... ... ... ... 576
In judgment or other proceedings . ... ... ... 576
For want of sanction to prosecute ... -.. ... ... 576
Or for omission to review list of jurors or assessors ... ... 576
Misdirection of jury ... ... ... ... 576
Distress, &c, on account of defect or want of form in proceedings ... 595
Investigation-
Defined ... ... ... ... ... 4
No, of non-cognizable offence without order of Magistrate ... ... 176
Police may make, of cognizable offence ... ... ... ... 176
When police to, at once ... ... ... ... ... 177
When local, dispensed with but matter to be reported ... ... 177
On, attendance of witnesses obligatory ... ... ... ... 178
Examination in, of witnesses to be oral ... .. ... 180
But if in writing not admissible in evidence .. ... ... 185
Magistrate may record statement or confession in ... ... ... 200
During, Police-officer may search for any thing necessary ... ... 210
It, not completed in 24 hours, copies of diary and accused to be sent to nearest
Magistrate ... ... .. ... ... ... 211
When remand to police custody may be ordered ... ... ... 211
Bcsult of, if made by subordinate PoIicc-oHiecr to be reported to station -officer 212
When accused to be released on recognizance ... ,.. ... 212
When to be sent in custody to Magistrate ... ... ... 212
Weapon or other article may also be sent ... ... ... 213
Complainant anil witnesses not to accompany police officer ... ... 213
When to be sent in custody ... ... ... ... 214
Police-officer making, to enter proceedings in diary ... ... ... '/14
To bo completed without delay ... ... ... ... 217
On completion of, report in prescribed form ... ... ... 217
Who may order, before process on complaint ... ... ... 281
Such, may be n ade by other than Police-officer ... ... ... 281
Order for, by unauthorised Magistrate when not void ... ... ... 564
Joint Trial—
What persons may be charged in a ... ... ... ,., 331
Of European British subject and native ... ... ... ... 492
Of Europoan or American charged jointly with person of another race ... 495
Index.
Page.
Journey—
Offences committed ou a, where to be dealt with .. ... ... 230
Jodge—
Sanction to prosecute, necessary ... ... ... ... 2^2
Exempt from service as juror or assessor . ... ... ... 387
Cannot try certain cases ... ... ... ... ... Mo
Cannot try cases in which, is personally interested ... ... G05
Judge of High Court—
Ex-officio Justice of the Peace ... ... ... ... ... 12
Not liable to suspension or removal by Local Government ... ... 12
Judgment—
In appealable summary trials, what to contain ... ... ... 350
Its language and preparation ... ... ... ... 350
Ordinary, what to contain and language of... ... ... ... 422
When in the alternative ... ... ... ... ... 422
No, in eases tried by jury ... ... ... ... ... 422
Not to be altered or reviewed except to correct clerical error ... .. 425
Presidency Magistrate to record certain particulars in ... ... ... 426
Of subordinate appellate Court what to contain ... ... ... 402
Of High Court to be certified to lower Court .. ... ... 463
Judicial Proceedings—
Defined ... -. ... ... ... ... 4
Enquiry into offence committed in course of ... . .. 502
Jurisdiction —
Combine I sentences not to exceed twice the Magistrate's ordinary powers ... 19
To pursue an offender into another ... ... ... ... 4!)
Pers n arreste 1 to be taken before Magistrate having . 50
Service of summons outside local ... ... ... ... 53
Proof of service outside ... ... ... 53
Persons arrested by land! olders, &c, to be taken before Magistrate having ... 56
Warrant of arrest for execution outside ... ... ... 57
Of Police-officer for execution outside ... ... ... ... 58
Procedure on arrest of person outside ... ... ... 58
Attachment of property of person absconding outside ... ... 60
Disposal of things found beyond ... ... ... 72
Power of Magistrate to issue order for security to keep the peace... ... 77
Attachment and sale of moveable property in nuisance cases ... ... 130
Within limit of, police may investigate cognizable cases ... ... 176
Power- to issue summons for offence committed beyond „. ... 232
When to lie reported for orders of High Court ... ... 232
Warrant for levy of fine, how to be executed ... ... 43t
As to conferring, on Magistrate in cases of European British subjects ... 4U4
Jurors—
Summons and not warrants for appearance of ... ... ... 64
Procedure on finding by majority of, Magistrate's order, in nuisance case, rea
sonable ... ... ... ... ... .. 129
Number of, to be chosen by High Court and Court of Session ... ... 355
How to bo chosen .. ... ... ... ... 356
Names of, to be called ... . ... ... 356
Accused to be asked if he objects ... . ... ... 356
782 Index.
Page.
Jurors—(continued)
Objection to, by accused or prosecutor ... ••• ... 356
Objection to, on what ground to be allowed .. .. ... 356
Decision of objection to ... ... ... .. ... 357
Supplying place of, objected to ... •-. ... ... 357
To appoint foreman ... ■•• ... ■•• - 357
Foreman may ask information of Court . ... ... .. 357
Swearing of ... ... ... .. ••• ••■ 357
Procedure on, ceasing to attend ... ... ... ... 357
When may be examined ... ... .. ••• . 370
Further enquiry or additional evidence how taken ... ... .. 427
Summoning and empannelling, in cases of European and American ... 495
Jury-
To enquire into order for removal of nuisance 121
Procedure failing application for ... ... 122
Procedure of Magistrate on receiving application for appointment... ... 126
Procedure on finding order of Magistrate for removal of nuisance reasonable 129
Procedure on failure to appoint ... ... ... ... 131
Omission to return verdict ... ... ... ••■ ... 131
Issue of injunction pending enquiry ... . ... 132
Transferred cases to High Court may be by ... ... ... 351
Trial before Sessions Court may be either with, or assessors ... ... 352
Local Government may order trial before Sessions Court to bo by ... 352
Trial by same, of several offenders in succession ... ... ... 355
Re-trial of accused after discharge of ... ... ... ... 383
Procedure in case of previous conviction ... ... ... ... 384
Number of, common and special in Presidency-towns ... ... .. 386
No judgment need be written in trials by .. ... ... 422
Right of European subject to claim ... ... ... ... 490
For trial of Europeans and Americans ■•■ . ... 495
To try fact of unsoundness of mind on committal ... ... ... 497
Trial by, of offences triable with assessors .. ... .. ... 575
Trial by assessors of offence triable by ... ... ... 575
Landholde-s—
Bound to report certain matters ... ... ... ... 33
Warrant may be directed to, for the arrest of certain persons ... ... 56
How to act .. ... ... ... ... ... 56
Language—
Of charge ... ... ... ... ... ... 302
Of record and judgment in summary trials .. ... ... 350
Of judgment generally ... ... ... 422
Of Courts ... ... ... ... .. "... 610
Letter—
Who may require Post Office to produce ... ... ... ... 67
To be detained by whose order ... ... ... ... 68
Such order by unauthorised Magistrate, void ... ... ... 565
Letters Patent—
Of High Court of Judicature for the N.-W. P., Criminal Jurisdiction ... 248
Libellous Matters-
Power of Court to order destruction of ... ... ... ... 553
Index, 78
Page.
Locil Government—
Defined ... ... ... ... ... ... ... 5
May appoint Advocate-General . ■.. ••• ■•• ... 3
To establish Courts of Session and appoint Judges of each division ... 7
To appoint Magistrate of first class to be Additional District Magistrate ... 7
May form Sub-Divisions or alter tlieir limits ... ... 7
To appoint Magistrate of several classes and define their local jurisdiction . 8
To appoint Special Magistrates ... ... ... ... .. 8
May appoint Sub-Divisional Magistrates ... ... ... 8
May constitute Bench and invest it with powers . ... ... 9
Power to make rule for its guidance ... ... ... ... 9
To appoint Presidency Magistrates ... ••■ ••• ... II
And Chief Presidency Magistrate ... ... ... 11
Rules for business of Benches of Presidency Magistrates, how made ... 11
To appoint Justices of the Peace for the Mufusil ... ... ... 12
And for Presidency-towns ■ ••• ... ... 12
Power to suspend and remove all Judges and Magistrates, except of Chartered
High Courts ... ... ... ... . 12
May invest District Magistrates with certain special powers in certain pro
vinces ... ... ... ... ... ... ... 14
May confer on Magistrate second-class, power to pass sentence of whipping ... 16
May confer additional powers on subordinate Magistrates ... ... 25
To control District Magistrates investing power ... .. ... 25
May make rule for service of summons ... ... ■•■ ... 52
May extend duration of order in certain eases of danger, &c, to human life,
&c. .. ... ... . ... ... 135
May prescribe form of police diary ... .. ... .. 172
May direct police report of cognizable offence to be sent through superior
officer of police ... ... ... .. ... ... 178
May empower certain Magistrates to hold inquest ... ... ... 218
May order trial of any cases or class of cases in any Sessions Division ... 224
May direct copies of depositions t ken out of British India to be received in
evidence ... ... ... ... ... 240
May empower certain Magistrates to take cognizance of certain offences ... 240
Direct Additional and Assistant Sessions Judge to try certain cases only ... 246
May empower certain Magistrates to commit for trial ... . , ... 289
District Magistrate and Magistrate first-class if empowered by, to try sum
marily ... ... ... ... ... 344
And Bench of first-class Magistrates if empowered by ... ... 344
And to other classes of Bench Magistrates what powers ... ... 348
May empower Bench to prepare record, &c., how ... ... ... 350
May order trial before Court of Session to be by jury ... ... 352
May tix the number of jurors... •■• ... ... .'155
May exempt salaried officers from service on jury ... .. ...385,387
May direct High Court where to sit ... ... . .. 391
May direct cvit'en 'e to be taken by Judge or Magistrate with his own hand .. 413
May direct manner of indicting sentence of whipping ... ... 433
May suspend or remit sentences ... ... ... ... 437
Or cancel suspension or remission ... ... ... ... 437
May require Judge to report on application for remission or suspension of sen
tences ... ... ... ... ... ... 437
May empower Assistant Sessions Judge of three years' standing to try Euro
pean British subject ... ... ... .. ... 488
May order confinement of lunatic in a Lunatic Asylum or other place of cus
tody ... . ... ... ... ... ... 498
Or of person acquitted for insanity ... ... ... ... 500
Index.
Page.
Local- Government.—{continued)
Call for report of the Htato of mind of lunatics ... ... ... 501
Procedure when lunatic declared fit to be released ... ... ... 501
May order custody of lunatic to be given to friends on security ... ... 501
May declare Registrar or Sub-Registrar to be a Civil Court for cases of con
tempt ... ... ... ... ... ... 514
May appoint Public Prosecutor ... ■•• ... ... 529
May empower District Magistrate to withdraw from subordinate Magistrate
classes of cases ... ... ... ... ... 562
May appoint place of imprisonment ... ... ... ... 599
May decide language of Courts ... ... ... .. 610
Local Law-
Saved from operation of the Code ... ... • ... 1
Offences under, by what Court triable ... ... .. ... 13
Lunatic-
Procedure in case accused being a ... ... ... ... 496
Procedure in case person committed being found a ... ... ••• 497
If offence bailable and accused a, may be delivered on proper security ••• 41)8
If not bailable or sufficient security bo not given, report to Government for
orders ... ... ... ... ••• ••• 498
Enquiry or trial may be resumed at any time ... ... ... 498
Procedure on accused appearing before Court or Magistrate... ... 499
If act found to be no offence because done by a ... ... 499, 500
Local Government may give custody to his friends on sufficient security ... 501
Lunatic Asylum Act-
No. XXXVI of 1858, sections 4, 5 and 18 .. ... ... 46, 496, 497
Magistrate of the District-
See District Magistrate.
Magistrate of the first-class-
Local Government to appoint a, to be the District Magistrate ... ... 7
Local Government to appoint subordinate ... ... ... 8
May be placed in charge of Sub-Division ... ... ... 8
Jurisdiction of, over offences shown in Schedule II ... ... ... 13
And offences under other laws ... ... ... 13
Sentences which, may pass ... ... ... 15
Several offences at one trial, what sentences to pass .. ... ... 18
Ordinary powers of ... ... ... ... ... 25
Additional powers conferable on ... ... ... 25
When, may by his warrant authorise police for search of houses, &c. 70
And of persons wrongfully confined ... ... ... ... 72
On conviction for rioting, assault, &c, may require security to keep the
peace ... ... .. .. ... 75
On information of probable breach of peace ... ... ... 77
When from person disseminating seditious matter and from vagrants and sus
pected persons, security for pood behaviour ... ... ... 82, 83
When, may discharge sureties for peaceable conduct or good behaviour ... 108
May issue conditional order for removal of nuisance ... ... ... 112
May issue order absolute in urgent cases of nuisance or apprehended danger, 134
index. 785
Page.
Magistrate of the first-class—(cotUmutd)
Procedure where dispute concerning land, &c, is likely to cause breach of
peace ... ... ... ... ... ... 143
May attach Bubject of dispute ... ... ... .. 161
Disputes as to easements, Ac. ... ... ... ... 164
May order local enquiry ... ... ... ... 168
May order police to investigate into non-cognizable cases ... ... 176
May hold inquest1 ... ... ... ... ■•■ ... 218
May issue process to aroused beyond jurisdiction ... ... ... 252
May transfer case to subordinate Magistrates ... 244
May postpone process on complaint and order enquiry by police ... ... 281
May commit for trial to Sessions or High Court ... ... ... 289
Power to postpone proceedings at any stage without pronouncing judgment, 336
May tender pardon to accomplice ... •. ... ... 449
No appeal from certain conviction by ... ... ... ... 440
No appeal in petty oases ... ... ••• .. ... 440
When, may enquire into or try charges against Kuropeau British subject ... 488
With what powers a, may be invested by Government ... ...Sch. IV
And by District Magistrate ... ..Scb. IV
Magistrate of the second-class—
Local Government to appoint subordinate ... ... ... ... 8
May be placod in charge of Sub-Divisions .. ... ... ... 8
Jurisdiction of, over offences as shown in Schedule II ... ... 13
And offences under other laws .. ... ... ... 13
Sentences which, may pass ... ... ... ... ... 15
Several offences at one trial, what sentences to pass ... ... ... 18
Ordinary powers of ... ... ... ... ... 25
Additional powers conferablc on ... ... ... ... 25
On information of probable breach of peace, how to proceed ... ... 77
May order police to investigate into non-cognizable cases ... ... 176
Or postpone process on complaint until enquiry by police ... ... 281
Conviction by, appealable to District Magistrate ... ... ... 446
With what power a, may be invested by Government ... ...Sch. IV
And by the District Magistrate ... ... ... ...Sch. IV
Magistrate of the third-class-
Local Government to appoint subordinate ... ... ... 8
Jurisdiction of, over offences as shown in Schedule II ... .. 13
And offences under other laws ... ... ... ... 13
Sentence which a, may pass ... ... — •■■ ... 15
Several offences at one trial, what sentences to pass ,„ ... ... 18
Ordinary powers of ... ... ... ••• ... 25
Additional powers oonferable on ... ... ... ... 25
On information of probable breach of peace, how to proceed ... ... 77
With what powers a, may be invested by Government ... ...Soli. IV
And by District Magistrate . ... ... ... ...Sch. IV
Magistrate of Sub-Division—
Who may be appointed a ., ... ... ... ... 8
Subordinate to District Magistrate — ... •« ... 9
Ordinary powers of ... .. ... ... •■• ... 25
May be invested with additional powers ... ••• ... •• 25
When, may by his warrant authorise police to search house, &c. ... ... 70
And for person wrongfully confined ... ... ••• ... 72
50
786 Index.
Page
Magistrate of Sub-Dlvision—(continued)
On conviction for rioting, assault, &c, may require security to keep the
peace .•• ■•• •• ••• ••• •■• 7o
On information of probable breach of peace, how to proceeil . .. 77
When, may demand security for good behaviour from persons disseminating
seditious matter and from vagrants and suspected persons ... ... 82, 83
May discharge sureties for peaceable conduct and good behaviour ... 108
When, may issue conditional order for removal of nuisance . ... 112
May issue order absolute in urgent cases of nuisance or apprehended danger ... 134
Procedure where dispute concerning land, &c, is likely to cause breach of the
peace ... ••• ... ... ••• ... 143
Power to attach subject of dispute ... ... ... ... 161
Dispute as to easements, &c. ... ... .. ... 164
May order local enquiry .. ... ... ... ... 168
May hold inquest ... ... ... ... ... ... 218
May issue process to accused beyond jurisdiction .. ... ... 252
Ordinarily, may take cognizance of offence ... ... ... 241
May transfer enquiry or trial to subordinate Magistrate ... ... 244
May postpone process on complaint until enquiry by police ... ... 281
May commit accused for trial to Sessions or High Court ... ... 289
May order maintenance of wife or child ... ... ... ... 517
May appoint Public Prosecutor ... ... ... .. 529
When, may sell unclaimed property ... ... ... ... 556
And if perishable ... ... ... ... .. ... 556
Maintenance-
Order for, for wife and children ... ... ... ... 517
What class of Magistrate can make order for, and within what limits ... 517
When order for, may be cancelled ... ... ... ... 518
When order for, may be altered ... ... ... ... ... 526
How an order for, may be enforced ... ... ... . 527
Order for, by unauthorised Magistrate is void ... ... ... 586
Money ordered as, may be recovered as line ... ... ... 602
Males-
Sentenced to death, transportation, &c, not to be whipped ... ... 434
Over forty-five years of age not to be whipped ... .. '„ 434
Marriage-
Offence relating to, institution of ... ... ... 276
Medical Witness-
Deposition of, taken and attested by a Magistrate ... ... ... 540
Memorandum—
At foot of confession or statement ... ... 200
Of evidence in summons-case and summary trials ... ".' " 419
When evidence not taken by Magistrate or Judge ... ... 412
Of objection made by witness in any statement recorded ... " 414
U± examination of accused when not recorded by Judge or Magistrate ' 417
Index. 787
Page.
Military-
Duty of, officer to disperse unlawful assembly on requisition made byjMagis-
trate ... ... ... ... ... ••• ... Ill
When, officer may himself disperse .. _ ... ... ... Ill
And may arrest and confine person forming part of such assembly ... Ill
When required as juror in High Court ... ... ... ... 386
Ordinarily exempt from such service ... ... ... ... 387
Magistrate bound to deliver to, authorities liable to be tried by Court-Martial 603
Apprehension of such person ... ... ... ... 603
Ministers of Religion-
Exempt from service as juror or assessor .. ... ... ... 387
Minor-
Bond for keeping the peace or for good behaviour by whom executed ... 103
Who may compound on behalf of ... ... ... ... 404
Mutual Consent-
Husband and wife living separately by, the wife not entitled for maintenance 518
Name and address—
On refusal to give or giving wrong, after commission of non-cognizable
offence ••• ••• ... •• ... ••• 48
Native State-
European British subject may be tried for offences committed in ... 235
When Local Government may direct evidence given beforo Political Agent to
be received in evidence ... ... ... ... ... 240
Commission to examine witness in ... ... ... ... 535
New Trial—
May be held on new or altered charge ... ... — ... 313
When Court of appeal or revision may order on a charge framed... ... 314
On absence of juror ... ... ... ... ... 357
Or of all assessors ... ... ... ... ... 358
High Court or District Magistrate may order, when conviction or commitment
as evidence recorded by two Magistrates ... ■.. ... 410
By High Court as Court of confirment ... ... ... ••• 428
May be ordered by Appellate Court in disposing of appeal ... ... 456
Non-bail ble Offence-
Defined ■ .. ... ... ... ... ... 3
Village headman, Ac, bound to give information regarding . ... 33
Warrant to landholder, Ac, for arrest of persons accused of ... ... f$
When bail may be taken in case of ... ... ... ... 532
Non -Cognizable Case-
Defined ... •■• ... .. ... ... 4
Refusal to give name and residence by person who committed a... ... 48
Investigation by police of, by order of Magistrate ... ... ... 176
788 Index.
Notice—
Of proclamation—restoration of attached property on absconder's proving
insufficient
To be given on order made absolute for removal of nuisance
In urgent cases—order absolute
Of the bearing of appeal to appellant or his pleader and Government pleader.
To be given to public prosecutor of intended application for transfer of case
Nuisance —
What Magistrates to pass orders in cases of
Person to whom order is addressed to obey or show cause or claim jury
Consequence on his failing to do so ...
Procedure whore the person appears to show cause ...
Procedure where jury finds Magistrate's order to be reasonable ..
Procedure on order being made absolute •• ...
Procedure on failure to appoint jury or omission to return verdict ...
Injunction pending enquiry ...
Order absolute in urgent cases of, or apprehended danger
Order under section 144 not proceedings and so uot open to revision
Order by unauthorised Magistrates void ... ... ...
Oath—
Not to be administered to the accused
Objections—
To jurors to be decided by the Court
To list of jurors to bo determined by the Judge and Collector
Obscene Books—
The Court may order the destruction of ...
Obstruction-
Order for removal of
Occupier—
Of land bound to report certain matters to Magistrate or police ...
Duty of agent of, to report
Offence-
Definition of
Cognizable, meaning of
Non-bailable, definition of
Bailable, definition of
Non-cognizable, meaning of ...
Public to give information of certain
On conviction for rioting, assault, &c, security for keeping the peace may be
required
Ordinary place of enquiry and trial ... ... .*.
Trial of being a thug
Of bell>nging to a band of dacoits
Of escaping from custody
Of criminal misappropriation and criminal breach of trust ..
Of stealing
Place of enquiry or trial where scene of, uncertain
When committed in more than one district
index. 789
Page.
Offence —(coHtinuetf)
Where, continuing ... ... ... ••• ... 229
Where, consists of several acts ... ••• ••• 229
When committed on a journey ... ... ••• ... 230
Against Railway, Telegraph, Post Office and Arms Act where to be tried ... 231
High Court to decide doubtful jurisdiction ... ... ... ■ 231
When committed beyond local jurisdiction, the procedure ... ... 232
Liability of British subject for, committed out of British India ... ... 235
Cognizance of, by Courts of Session ■.. ... ... 246
Cognizance of, by High Court ... ... ... '^48
Prosecution for, against public justice ... ... ... ... 250
Prosecution of, against the State ... ... ... ... 270
To be stated in charge .. ... ... ... ... 302
Manner of committing must be stated ... ... ... 306
Separate charge for distinct ... ... ... ... 314
Three offences of same kind within one year may be charged ... ... 319
Trial for more than one ... .. ... ... ... 321
When person charged with one, may be convicted for another ... ... 329
When, proved included in, charged ... ... ... 330
What, may be tried summarily ... ... ... 344
Government may order the trial of particular class of, by jury before Sessions
Court ... ... ... ... ... ... 352
Compounding of ... ... ... ..- ... 403
Cognizance of, committed by European British subject ... ... 489
Bad in what, to be-taken ... ... ... ... ... 532
When in non-bailable ... ... ... ... ... 532
Offending Religious Feelings—
Compoundable ... ... ... ... ... ••• 403
Officer in charge of Police-station—
Who is an ... ... ... ... ... 4
When, may arrest or cause to be arrested vagabonds, habitual robbers, &c. ... 45
Procedure when an, deputes subordinates ... ... ... 47
To report to Magistrate all arrests without warrant ... ... 51
May order unlawful assembly likely to cause a disturbance to disperse ... 109
And when may use force ... ... ... ... 110
When may, enter any place and inspect weights and measures ... ... 171
And report seizures to Magistrate ... ... ... ... 171
To reduce to writing information of cognizable offence ... ... 172
To be read over and signed by informant ... ... ... 172
May investigate cognizable case ... ... ... ... 176
Procedure on information of non-cognizable officer ... ... ... 176
May be ordered by Magistrate to investigate non-cognizable case ... 176
Procedure when cognizable offence is suspected ... ... ... 177
Report to be submitted through superior officer ... ... ... 178
May search for anything necessary in investigation ... ... ... 210
If unable to proceed personally may in writing authorise subordinates ... 210
One, may require another to make search ... ... ... 211
Report of investigation made by subordinates to ... ... ... 212
May release on recognizance when evidence deficient ... ... 212
Case to be sent to Magistrate when evidence sufficient .. ... 212
Omission-
Effect of, in charge ... ... ... ••• ... 307
Effect of, to ask person if he is an European British subject ... ••• 574
Effect of, to prepare charge ... ... ... ... ••• 574
790 Index.
Paoe.
Order In writing—
By officer in charge of police-station directing arrest by subordinate ... 47
To produce documents, &c, during investigation .. ... ... 65
By Magistrate in proceedings for security for peace or good behaviour ... 91
Shall specify substance of information
If person to whom, is directed be present in Court
Copy of, to be served with process ... ... ... ... 96
Temporary, to stop nuisance ... ... ... ... ... 4
May be directed to person or public ... ... ... 135
May be rescinded or altered ... •■> ... ... 135
How long to remain in force ... ... ... ... 135
To be recorded regarding disputed possession of land... ... ... 143
And of disputed easements ... ... ... ... 164
Owner of Land-
Bound to report certain matters to nearest Magistrate or at police-station ... 33
Pardon-
Tender of, to accomplice ... ... ... ... ... 391
To be examined us witness ... ... ... ... 392
Magistrate tendering, not to try case himself ... ... ... 392
Other than Presidency Magistrate to record reason ... ... 392
Court may direct, any time after commitment ... ... ... 394
Procedure on trial of approver on withdrawal of ... ... ... 395
When statement of person accepting, may be given in evidence against him 395
Right of Crown to grant ... ... ... ... ... 437
Tender of, by Magistrate not empowered, effect of ... ... ... 564
Perishable Property—
When may Court order the absconder's property to be sold ... ... 61
Disposal of, regarding which offence committed ... ... ... 547
And if unclaimed . .. ... ,„ ... ... ... 556
Personal Attendance—
When, of accused may be dispensed with ... ... ... ... %
In cases on summons issued ... ... ... ... 288
But can always be required ... ... ... ... 288
In maintenance case, of husband or father may be dispensed with ... 518
Personal Interest—
Of Judge or Magistrate is a disqualification to try, commit or hear appeal ... 005
Petition of Appeal-
To be in writing and to be presented by appellant or his pleader .. ... 45'J
And by what to be accompanied ... ... ... ... 453
Summary disposal of ,. ... ... ... ... 454
Plea—
In warrant-cases accused to be asked his ... ... ... .. 339
TiTbe recorded in summary trial ... ... ... ... 349
Before High Court or Court of Session be asked his ... ... ... 354
May be convicted on, of guilty ... ... 354
What procedure on failure or refusal to make, in Sessions or High Court ... 355
In judgment of Presidency Magistrate, to be recorded ... ... 426
No appeal when accused oonvicted on his own ... ,„ ... 448
Index. 791
Paob.
Pleader-
Definition of ... ... ... ... ... ... 4
Person called upon to show cause as to furnishing security for keeping the
peace may appear by ... ... ... ... ... 96
Bight of accused to be defended by ... ... ... ... 398
When evidence to be taken in presence of accused's ... ... ... 411
When evidence to be interpreted to ... ... _ ••. 414, 415
Instructed by a private person to act under instruction of Public Prosecutor .. 529
Magistrate may permit prosecution by other than police ... ... 531
Police Diary-
Entry in, of information in non-cognizable cases ... ... ... 176
Police-officer refreshing his memory from ... ... ... 214
Police Investigation—
In cognizable cases how conducted ... .. ... ... 176
Report in case of, to be sent to Magistrate ... ... ... 177
Attendance of witnesses on, how to be effected ... ... ... 178
Statements to police in, not to be signed ... ... ... ... 185
Not admissible in evidence .. ... ... ... 185
Dying declaration made in, effect of... ... ... ... 185
Search by police-officer in ... ... ... .. 210
When by subordinate .. .. ... ... ... 210
Provision as to search-warrants to apply to search in ... ... 210
Search by police-officer other than police engaged in ... ... 211
Procedure when completion of, is impossible within 24 hours ... ... 211
Report of, by subordinate police-officer ... ... ... ... 212
Release of accused when evidence insufficient ... ... ... 212
Bond for appearance to be taken ... ... .. ... 212
Accused to be forwarded to Magistrate when evidence sufficient ... ... 212
Diary of proceedings on, may be sent for by Criminal Courts ... ... 214
To be completed without delay and report sent to Magistrate ... ... 217
In case of unnatural death ... ... ... ... 217
Power of police to summon persons in, of cases of unnatural death ... 220
In case of death in police custody, inquest by Magistrate ... ... 221
Police-officer—
When may demand assistance from public ... ... ... 28
Search of arreBted person for articles upon him ... ... ... 39
Mode of searching women ... ... ... ... 39
May take charge of property found ... ... ... 39
And of offensive weapon ... ... ... .. ... 39
When may arrest without warrant ... ... ... ... 39
On refusal to give name and address may arrest for non-cognizable offence ... 48
May pursue offenders into other jurisdiction ... ... ... 49
After arrest without warrant to send accused at once to Magistrate or Police-
station ... ... ... ... ... ... 50
Period of detention by, limited to 24 hours ... ... ... 50
On discharging from arrest, to take a bond ... ... ... 51
Summons shall ordinarily be served by ... ... ... ... 51
Warrant of arrest to be ordinarily directed to ... ... ... 66
May endorse warrant of arrest to another, for execution ... ... 57
To interpose in preventing cognizable offence ... — ... 169
On receiving information of design to commit cognizable offence to communi
cate to Magistrate ... ... ... ■.. ... 171
May arrest person designing to commit such offence ... ... 171
To prevent injury to public property ... ... ... ... 171
lrittex.
Page.
Police-officer—(continued)
Not to investigate non-cognizable offence without orders from Magistrate ... 176
And on such order to exercise what powers ... .. ••• 176
Not to offer any inducement to an accused ••• ••■ •■• 193
But not to caution against making statement ... ... 193
In case of death in custody of, Magistrate to hold an inquest ... ... f-M
Not to conduct prosecution if taken part in the investigation ... ... 531
On seizure of property, what procedure requisite ... ... ... 553
Disposal of the property ... ... ••• ••• ••• 553
Police officer of Superior Grade-
May exercise same powers as officer in charge of Police-station ... ... 603
Police-station-
Defined ... ... ... ... — ••• 4
Officer in charge of, defined ... ... ... ... ... 4
Political Agent—
To certify fitness of enquiry into charge ... ... ... ... 236
When deposition taken by, may be made evidence ... ... ... 240
May execute commission to examine witnesses ... ... ... 535
Possession—
Of disputed land, enquiry to be made by what class of Magistrates ... 143
Of disputed land to be retained by party in, until legally evicted ... 144
Proceedings not to abate on death of a party _ ... ... ... 144
Order for, of immoveable property after forcible dispossession ... ... 553
Post Mortem Examination —
By Civil Surgeon ... ... ••• ••• ••• .1. 218
Power of Magistrate to disinter corpse for ... ... ... 221
Deposition of medical witness to be evidence ... ••• ... 540
Post Office—
What Magistrates and Courts may order, to deliver letters, &c ... ... 67
Offence relating to, may be enquired into or tried in Presidency-town ... 231
Officer of, exempt from service as juror or assessor ... ... ... 387
Postponement—
Of issue of process on complaint ... ... ' ... ... 281
Of enquiry or trial, when ... ... ... ... ... 402
In case of person being a lunatic ... ... ... ... 4%
Pregnant Woman-
Commutation of sentence of death on ... ... ... ... 429
Presidency Magistrate-
Local Government to appoint ... ... ... ... ... 11
Ex-officio Justice of the Peace ... ... ... ... 12
Sentence which, may pass ... ... ... ... ... 15
May issue warrant for house search ... ... ... ... 70
And for person wrongfully confined ... ... ... ••• 72
May on conviction of certain offences require security for peace ... ... 75
On information of probable breach of the peace, how to proceed ... ... 77
For disseminating seditious matter ... ... ... ... 82
When, may institute proceedings for good behaviour ... ••• 83, 80
Index. 793
Page.
Presidency Magistrate—(continut/f)
Commencement of period for which security is required ... ... 105
Proceeding in security caBes when to be laid before High Court... ... 106
May release person imprisoned for security ... ••• ... 108
May issue process to accused beyond jurisdiction ... ... ... 232
When, may ordinarily take cognizance of offence ... _ ... ... 240
Unless empowered by Government cannot order enquiry into truth of com
plaint — ••• ••■ ■•• ••• ••• 281
May commit to High Court ... ... ... ... ... 289
Need not record reasons for commitment ... ... ... 296
May stay proceedings without pronouncing judgment ... ... 336
May offer conditional pardon ... ... ... ... 391
Record of evidence in Court of ... ... ... ... 416
Judgment of, what to contain ... ... ... ... 426
No appeal from judgment by, on conviction when accused pleads guilty ... 448
Except aB to extent or legality of sentence ... ... ... 448
May refer or give judgment subject to opinion of High Court ... ... 466
May submit statement of grounds of decision ... ... ... 487
May order maintenance to wife and child ... ... ... ... 517
May issue commission to examine witness... ... ... ... 535
May sell unclaimed property ... ... ... ... ... 656
May order prisoners in jail to be brought for examination ... ... 600
Previous Acquittal-
Bar to subsequent proceedings ... ... ... ... 439
How, may be proved ... ••• ... ... ... 542
Previous Convictlorjs—
When to be set out in charge ... ... ... ... 302
Procedure in cane of ... ... ... ... ... 384
Process-
When, may be withheld until enquiry made by police ... „. 281
For attendance of accused when to be issued by Magistrate ... ... 288
And after commitment, for witnesses for the defence ... ... 299
Discretion with Magistrate in summons -case to issue, for witnesses ... 333
In warrant-case Magistrate to issue process for witnesses ... ... 342
Proclaimed Offender-
Village headman, &c, to report to nearest Magistrate or Police-officer, the
resort of ... ... ... ... ... ... 33
May be arrested by police without warrant ... ... ... 39
Arrest by private person ... ... ... tM 49
Magistrate may direct warrant to landholders, &c, for arrest of .. ... 56
Proclamation—
Of person absconding ... ... ... ... ... 59
Publication of, how proved ... ... ... ... ... 59
Attachment of property of person absconding -.. ... ... 60
When order for removal of nuisance may be served by ... ... ng
For owner of unclaimed property ... ... ... ... 553
Pablio—
Bound to assist Magistrate or police ... ... ... ... 28
May aid in execution of warrant of arrest by other than police ... ... 31
Bound to report commission of or intention to commit certain offences ,„ 31
794 Index.
Paqe.
Public— {continued)
May arrest person who in their view commits cognizable offence ... 49
To access to Court ... ... ... ••• ••• ... 411
Public Prosecutor-
Defined ... ... ... ... ••• ••• 5
To conduct all Sessions trials ■•• •■. ••• ••• ••• 353
Local Government may direct( tc present appeal against acquittal ... 417
Government to appoint ... ... ... ... ... 529
May appear without written authority ... ... ... ... 529
May with the consent of Court withdraw from prosecution ... ... 531
Notice tD, of application for tranrfer of any case ... ... ••• 557
Purchaser-
Payment of innocent, of money found on accused ... ... ... 551
Pursue to arrest-
When police may, into other jurisdiction ... ••• . . ' .
On escape or rescue person in charge may, in any place in British India ... 51
Railway-
Public bound to assist in preventing injury to ••• ••• ••• 29
Service of summons on, employes ... ••• ••• •• 53
Offence relating to, may be enquired into or tried in Presidency-towns ... 231
Re-arrest—
By Police-officer of person arrested by private person
Of person escaping from lawful custody ... ■•• ,
Of offender for ncn-fulfilment of condition of cancellation, remission or sus
pension of sentence
Reasonable Expenses-
Magistrate in summons-case may require deposit of, of witnesses ... 333
Reasons in Writing-
Magistrate to record, for issue of warrant of arrest in lieu of summons ... 64
By District Magistrate for cancelling bond to keep the peace or of good be
haviour ... .. ••• ■.. ... ... 108
Magistrate authorising detention of accused by police to record its ... 211
For refusing to issue process for witness ... ... ... ... 291
Brief, for commitment to Sessions or High Court ... ... ... 296
After recording, may stop proceedings ... ... ... ... 336
For discharge of accused in warrant-case at any stage of the case ... 338
For refusal to summon witnesses on application of accused ... ... 312
For conviction in summary trial ... ... ... ... 349
When Sessions Judge disagrees with verdict ... ... ... 379
By Magistrate for tendering pardon ... ... ... ... 392
For postponement or adjournment of proceedings ... ... ... 402
For inability of Magistrate to make memorandum of evidence ... ... 412
In enquiries and warrant-cases ... ... ... ,„ 413
For suspension of sentence by appellate Court ... ... ... 463
I ecord of, by District and Sub-Divisional Magistrates for withdrawing or re
calling case ... ... — ... ... ... 562
Record of, for withdrawing classes of cases from Sub-Divisional Magistrates... 562
Index. 795
Page.
Recall—
Of witnesses when charge altered ... ... ... ••• 313
Of case made over by District or Sub-Divisional Magistrate to subordinate
Magistrate 1 .. — ••• ••• ■•• •••
Reason for, to be recorded .. ... ... ... ••• "62
Receiver of Stolen P operty—
Village headmen and others connected with land to give information of ... 33
Security for good behaviour from ... ... ... ... 85
Recognizances—
Court may direct, of persons arrested under warrant ... ... ... 55
May be taken by the police for appearance of accused before Magistrate ... 212
On refusal of witnesses or complainant to execute ... ... 213
For attendance of complainant and witnesses after commitment of accused ... 301
Release of accused on, in non-cognizable cases ... ... 532
Deposit of money or Government paper instead of, except in case of good be
haviour ... ... ... ... ... ... 544
Procedure on forfeiture of ... ... ... ... ... 544
Levy of amount due on forfeiture ... ... ... ... 544
Reference-
By Presidency Magistrate to High Court ... ... ... ... 466
Disposal of case according to the decision of the High Court .. ... 466
High Court may direct by whom costs of, to be paid ... ... 466
Power of High Court Judge to reserve questions arising in original jurisdiction 4C6
Procedure when question reserved .. ... ... ... 466
Power of superior Courts to call for record of inferior Courts ... ... 467
Power of Sessions Judge and District Magistrate to order commitment on
revision ... ... ... ... ... ... 472
Power of High Court and Court of Session to order further enquiry ... 475
Sessions Judge or District Magistrate may report to High Court ... ... 480
High Court's power of revision ... ... ... ... 481
Has no power on revision to convert finding of acquittal into one of con
viction ... ... ... ... ... ... 482
No power of revision in cases where an appeal lies and no appeal is brought ... 482
Optional with Court to hear parties on revision ... ... ... 487
Statement of Presidency Magistrate of grounds of decision to be considered
by High Court ... ... ... ... ... ... 487
High Court's order to be certified to lower Court ... ... ... 488
Reformatory —
Confinement of youthful offenders in .. ... ... ... 436
Reformatory Act-
See Act.
Refusal—
To give proper name and residence to ,„ „, ,,, 43
Police on committing cognizable offence on, to plead to charge, what
procedure ... ... .. ... ... ... 339
The Court and jury may draw such inference from, to answer questions as it
thinks fit ... ... ... ... ... ... 3gg
Of witness to answer questions or produce document ... ... ... 514
To maintain wife or child ... ... ,., .„ ttt 517
796 Index.
Page.
Release—
Power of District Magistrate to, person imprisoned in default of finding
security ... . ... ... ... ... 108
Power of appellate Court to, appellant on bail pending appeal ... ... 463
High Court may exercise such power pending appeal to lower Court ... 463
Of accused pending reference to High Court ... ... ... 480
Of lunatic pending investigation or trial ... ... ... ... 498
Religious Feeling-
Uttering words with deliberate intent to wound, compoundable ... ... 403
Remand-
To police custody during investigation ... ... ... 211
On reference by Sessions Judge to High Court, on disapproval of verdict of
jury ... ... ... ... ... ... ... 379
What, on adjournment of enquiry or trial may be granted ... ... 402
Remission—
Power to suspend or remit sentences ... ... ... ... 437
If condition not fulfilled ... ... ... ... ... 437
Cancellation of ... ... ... ... ... 438
Arrest after cancellation by police without warrant ... ... ... 438
Her MajeBty may grant ... ... ... ... ... 438
Repetition of Public Nuisance-
Prohibition of .. ... ... ... ... ... 133
Effect of order by unauthorised Magistrate ... ... ... 566
Report-
Public bound to, about certain offences to nearest Magistrate or police 31
Village headmen and certain persons connected with land to, about certain
offences to nearest Magistrate or police ... ... ... ... 33
Of local enquiry on disputed possession or easements may be read as evi
dence in the case ... ... . ... ... 168
Of cognizable offence by police .. ... ... ... 177
Of reason for not investgating by police ... ... ... ... 177
To be sent through superior Police-officer ... ... ... ... 178
On completion of investgation by Police-officer ... ... ... 217
By f'olice-officer, of suicide, &c. ... ... ... 218
To Local Government when accused is found insane and incapable of making
defence ... . ... ... ... ... 498
To Local Government when accuse 1 is acquitted on ground of insanity ... 500
By Inspector-General of Prisons on condition of lunatic prisoners ... 500
By visitors of lunatic asylum ... ... ... ... 500
Of commission of enquiry in case of lunatics detained ... ... 501
Of Chemical Examiner of analysis, may be used as evidence ... ... 541
Of Assistant Chemical Examiner ... ... ... ... 541
Re-trial—
Of accused after discharge of jury ... ... ... ... 383
Entry by Judge on discharge of jury ... ... ... 383
May be ordered by Court of Appeal ... ... ... ... 456
Revenue Court-
May complete enquiry and commit for trial ... ... ... 510
Procedure on such commitment ... ... ... ... 51 1
Summary procedure in certain cases of ... ... ... ... 5H
Record in such case ... ... ... ... ... 513
Discharge on apology or submission ... .,, ... 514
Index. 797
Page.
Revision—
Of an order under section 144 by the Magistrate who passed the order or
superior Magistrate ... ... ... ... ... 135
Of liHt of jurors and assessors ... ... ... ... 388
What power of, by District Magistrate and Sessions Judges ... ... 472
Where there lias been improper discharge ... ... ... 472
Accused to have opportunity of showing cause ... ... ... 472
High Court and Court of Session on, may order further enquiry ... ... 475
High Court's power of ... ... .. ... 481
Optional with Court exercising powers of, to hear parties ... ... 487
Statement of Presidency Magistrate of grounds of decision to be considered... 487
Order of High Court on, to be certified ... ... ... ... 488
Riot-
Public bound to assist in suppression ... ■•• ... ... 28
Security for keeping the peace on conviction of ... ... ... 75
Robber—
Village headmen and others connected with laud to report to nearest Magis
trate or police ... ... ••• •" ••• *?
Arrest of habitual, by police ... ■• ••• "" ™
Socurity for good behaviour from habitual ... ••• ••• ''
Rules—
Power to frame, for guidance of Benches
District Magistrate may make, for distribution of business amongst Magis
trates Judge
Sessions and Benches
may make, for disposal of urgent applications by Additional
and Assistant Sessions Judges ... •.. ... 10
Chief Presidency Magistrate to make, for Presidency Magistrates and Benches 11
By Local Government as to service of summons ... ... .. 52
For publishing proclamation in nuisance-cases ... ... ... 110
r•'or recording evidence in High Court ... ... ... 420
By High Court for inspection of records ... ... ... ... 604
Sale of Property—
Of an absconder's live-stock or of perishable nature ... ... ... 61
To rocover costs of carrying out the order in nuisance-cases ... 130
In default of payment of tine... ... -.. ... ... 430
On forfeiture of bond ... ... ... ... ... 544
If unclaimed after proclamation ... ... ... ... 553
Sanction—
, Necessary for prosecution for contempt of lawful authority of public servants 250
For certain offences against public justice ... ... ... 250
For certain offences relating to documents given in evidence ... ... 250
Nature of for prosecution
Necessary ... ...
of Judges ..
and public ...
servants ...
... ...
... 250
272
Stay proceedings, if prosecution of offence in altered charge require, previous 313
Of High Court necessary for prosecution of offence of giving false evidence
by person under pardon ... ... ... ... ... 395
Procedure in cases requiring, on complaint by Court ... ... ... 602
798 Index.
Page.
Sanction to Prosecute-
By Governor-General for acts done in dispersing unlawful assembly ... Ill
For contempt of authority of public servants ••• ••• ••• 250
For perjury and offences against public justice ... ... ... 250
For perjury and offences relating to documents ... ... .- 250
How to be expressed ••■ .. ••• 250
When may be revoked or granted by superior authority ... ... 251
How long to remain in force ... ... ••• ... 251
For offences against the State by whom to be granted... ... ... 270
Judges and public servants ... ... ... ... 372
When, necessary on alteration of charge ... .. ... ... 313
May be granted by High Court for false evidence after conditional pardon ... 335
Courts cannot try offences requiring, referred to in section 195 when com
mitted before themselves ... ... ... ... ... 515
Search—
Of place entered by person sought to bo arrested ... ... ••• 37
Procedure of, when ingress not obtainable ... 38
Of person arrested ... ... ... ••• ... 39
Of women, mode of ... ••. — ... ••• 39
Of house suspected to contain stolen property ... •• ... 70
For forged document, &c. ... ... ... ... 71
For stolen property ... ... ... ... ... 71
For false seals... ... ... ... ... — 71
For instruments for counterfeiting coin ... ... ... 71
For counterfeit stamp or coin ... ... ... ... 71
For instruments for forging .. ... ... ... 71
For person wrongfully confined ... ... ... ... 72
Person in charge of closed place to allow facilities for ... ... 74
Persons may be summoned to attend as witnesses ... .. ... 74
List of articles found on, to be signed by witnesses .. ... ... 74
Copy of, to be given to occupants of place ... ... ... 74
Occupant of place searched, may attend at ... ••• ... 74
Magistrate may direct, in his presence ... ... ... ... 74
When police conducting investigation may make, for document or other
thing ... . „. ... ... ... 210
When to be made by officer in charge of another Police-station ... 211
Search Warrant-
Execution of, in apartment in occupancy of women, how to be conducted ... 38
When , may be issued ... ... ...
For document in custody of the Postal or Telegraph authorities—by whom to
be granted
Power of Court to restrict 70
Search of house suspected to contain stolen property, forged documents, &c. 70
Disposal of things found on search beyond jurisdiction ... ... 72
For persons wrongfully confined ... ... ... 70
Directions, Ac, in... ... ... ... '\\ -4
Persons in charge of closed place to allow execution ... ... • 74
To be executed in presence of witnesses ... ... ".' 74
Occupant of place searched may attend execution of ... .. ... 74
Magistrate may direct search in his presence ... 74
Security for Good Behaviour—
Imprisonment in default of ... ... ... ... 1M 105
Who may discharge person imprisoned for failing to give ... .V.' 108
Index. 799
Page.
Security to Keep the Peace—
Imprisonment in default of ... ... ... ... ••• 105
Who may discharge person imprisoned for failing to give ... ... 103
Sentence—
What, may be passed by the various classes of Courts and Magistrates ... 15
Special, certain District Magistrates may pass ... ... ... 18
When more than one, in the same trial but of several offences ... ••• 18
To be specified in judgment ... ... .. ... ... 422
Relative severity of several kinds of ... ... •. ... 434
On escaped convict ... ... ... ... 434
On prisoner already under sentence for another offence ... ... 435
On youthful offenders ... ... ... ... ... 436
Enhanced, only by High Court ... ... ... ... 481
Sentence of Death—
To l>e passed by Sessions and Additional Sessions Judges subject to confirm
ation by High Court ... ... ... ... ...
To direct that the person be hanged by the neck till he is dead ... ... 15
425
On passing, Sessions Judge to inform prisoner limitation for appeal ... 427
Sentence for Transportation—
Not to specify the place of ... ... ... ... ... 425
Sessions Court-
Powers of Local Government to establish ... ... ... ... 7
May require Postal and Telegraph authorities to produce documents ... 67
Additional Sessions Judges to try what cases ... ... ... 246
And Assistant Sessions Judges ... ... ... ... 246
When may, alter charge ... ... ... ... ... 312
Trial before, to be by jury or with assessors ... .. 352
Local Government may order offences to be tried by jury before ... 352
Trial in, to bo conducted by Public Prosecutor ... ... ... 353
Verdict in, when to prevail .. ... ... ... ... 373
Miy summon another set of jurors or assessors .. ... ... 389
May direct tender of pardon ... ... ... ... ... 391
As to record of evidence in trials before ... ... ... ... 412
To send copy of judgment to District Magistrate ... ... ... 427
To submit sentence of death to High Court ... ... ... 427
Appeal to, how heard ... ... ... ... ... 447
Appeal from sentence of ... ... ... ... 447
Power of, to call for records of inferior Courts ... ... ... 467
Power to order commitment of accused improperly discharged ... ... 472
Power to order further enquiry on revision... ... ... ... 475
May report to High Court ... ... ... ... ... 480
When commitment of European British subject to be to ... ... 489
Sentence which may bo passed by, on European British subject ... ... 489
Procedure in case of person committed before, being lunatic ... ... 497
Power of, as to offence committed before itself ... ... ... 509
Power of, to direct levy of amount due on recognizances ... ... 549
Sessions Judge-
Appointment of, by Government „, ... ... ... 7
Of Additional ... ... ... ... ... ... 7
Of Assistant ... .. ... ... ... ... 7
Subordination of Assistant Sessions Judge to ... ... „. 9
8oo Index.
Page.
Sessions Judge—(.contmueJ)
Wlmt cases to be tried by Additional ... ... i#i aic
What by Assistant ... ... ... '"' Zif
Manner cf recording evidence before ... ... ." ^jj
Appeal from sentence of Assistant to ... ... ^j-
Assistant, lias jurisdiciou over un European British subject if lie is of 3 years'
standing and has been especially empowered by Local Government ... 4gg
Sessions Trial-
Commencement of —charge to be read and expluined .. ... 353
Accused to be asked to plead on ... ... ... ... 354
Conviction on plea of guilty ... ... ... ... 354
When accused refuses to plead or claim to be tried ... ... 355
Prosecutor to open cases ... ... ... ... ... 359
And examine witnesses for prosecution ... ... ... jjgg
Examination of accused before committing Magistrate to be evidence in ... 360
Evidence at preliminary enquiry, at discretion of Court, may be treated as
evidence in ... .. ... ... ... 31)2
Procedure after examination of witnesses for prosecution ... ... 353
Opening of case in defence by accused or his pleader . ... .. 3^7
Then examination of witnesses for defence . ... ... 3^7
Right of accused as to examination and summoning of witnesses... ... 3«7
Prosecutor's right of reply ... ••• ... ... ... 3^
View by jury or assessor .■ ■•• ... ... .. 3GH
When juror or assessor may be examined in ... ... „ 3711
Jury and assessors to attend at adjourned sitting ... ... ... 3-^,
Locking up of jury in ... ... •■ ... ... 370
Charge to jury in ... ••• ... ... ... 370
Judge to Bum up evidence ••• ■•• ... ... ... 370
Duty of Judge in ••• •■• .. ... ... 371
Retirement of jury to consider verdict in ... ... ... ... 375
Dolivery of verdict in ... ■•• ... ••• 375
Procedure when jury differ ... ... ... ... ... 375
Verdict to be given on each charge ... ... ... ... 37,;
Judge may question jury ... ••• -.- ... ••• 37^
Amending verdict in ... ••• ... ... ••• 373
Judge to pass judgment on verdict in ... ... ... ... 373
Verdict of acquittal in ... ... ... ... ... 379
Procedure when Judge disagrees with verdict ... ... ... 371)
Ke-trial of accused after discharge of jury iii .. ... ... 333
Simple Imprisonment-
Power to commute sentence •■• ... ... ... ... 43*)
In default of security to keep peace ... .. ... ... 105
For good behaviour, discretional ... ... ... ... 105
Solitary Confinement-
Wild may pass sentence of ... ... ... ... ••. 15
Special Law-
Saved from operation of the Code ... ... ... ... 1
Offences under, by what Court triable ... ... ... ... 13
Statement—
Every person bound to make true, when required by police ... ... 180
Except when ... ... ... ... ... ... 180
Not to be signed by the maker and inadmissible against accused ... 185
No inducement to be offered to accused ... ... ... ... 193
Index. 80 1
State offences against— Page.
Require sanction of Government to prosecute ... ... 270

Sub-Division —
Defined ... ... ... 5
Existing, maintained ... ... 7
May be created and altered by Local Government ... ... ... 7
Sub-Divisional Magistrate-
See " Magistrate of Sub-Division."
Subordination—
Of all Magistrates and Benches to District Magistrate .. ... ... 9
Also to Sub-Divisional Magistrate ... ... ... 9
Of Magistrate and Benches to Sessions Judges limited ... ... 10
Summary Trial—
What Magistrate may hold, and for what offences ... ... ... 344
Record in, when there is appeal ... ... ... ... 349
Procedure for summons ... ... ... ... 349
Limit of imprisonment on ... ... ... ... 349
Judgment in, in appealable C&SC *•• 111 ••• 350
Record of evidence in other cases of ... ... ... ... 412
No appeal from certain summary conviction ... ... ... 449
If held by unauthorised Magistrate, effect of ... ... ... 56C
Summons—
What Court to issue .. ... ,„ ... 61
To be served by police ... ... ... ... 52
And how ... ... ... ... 52
On Government or Railway servants ... ... ... ... 53
Service of, outside local limits ... ... ... ... 53
Proof of service of ... ... ... ... 53
Warrant in lieu of or addition to ... ... ... ... 64
Court may issue, to produce document 65
How to be complied ... ... ,., ,. ... C5
Summons-case—
Defined ... ... ••• ... 5
On appearance of accused in, substance of accusation to be stated ... 333
Conviction if he admits ... ... ... ... 333
When no admission made ... ... ... ••• 333
Discretion of Magistrate to issue process for witnesses in ... ... 333
May require deposit of expenses before issue of process ... ... 3<3
When to acquit or convict .. ... ... ... 334
On non-appearance of complainant in, acquittal or adjournment ... ... 334
On withdrawal of complaint in, accused to bo acquitted ... ... 335
When Magistrate may stop proceedings ... ... ... ... 336
Compensation to accused in, frivolous or vexations accusation ... ... 336
May be tried summarily ... ... ... ... ... 344
Record in, and in trials of certain offences— ... ... ... 412
Sureties—
To bond for keeping the peace on conviction ... ... ... 75
To bond for keeping peace in other cases ... ... ... 77
For good behaviour of vagrants and suspected persons ... ... if'S
51
802 Index.
Page.
Sureties— [continue,/)
For good behaviour of habitual offenders ... ... ... 85
Number, character and class of, to be stated in order to show cause ... 91
Bond in case of minors for keeping the peace ... ... ... 103
Bond by, against breach of peace ... ... ... ... 103
For good behaviour ... ... ... ... ••• 103
Power of Court to reject ... ... ... ... ••. 105
Kims; m for rejecting to be recorded ... ... ... ... 105
Discharge of .. ••• ••• ••• ••' 108
To bail-bond executed by accused ... ... ••• ••• 533
Application of, to bail-bond for discharge ... ... ... 532
Accused to furnish fresh ... ... ••• ■•• ... 532
Suspension of Sentence—
Of imprisonment ... ... ... ,., .., 431
Of whipping ... ... ... ... ... 434
By Governor-General and Local Government ... ... ... 437
Suspicious Death—
Villago headmen, &c, to report^to Magistrate ... ... .. 33
Telegram-
District Magistrate, Sessions or High Conrt may require the production of ... 67
Detention of, pending order of such Magistrate or Court ... ... 68
Thug-
Visit of suspected, village headmen and others connected with land to report ... 33
Thuggee—
The charge of, may be enquired into or tried by a Court within whose juris
diction the person charged is ... ••■ ■•• ... 227
Transfer—
Of case taken up by Magistrate on his own knowledge or suspicion on the
application of the accused ... ••• ... ... 241
Of cases by District or Sub-Divisional Magistrate to a subordinate Magistrate... 244
Procedure on, of case taken up on complaint ... _ ... ... 279
On, under Letters Patent— trial may be if tho Court directs, by jury ... 351
When Magistrate cannot pass sufficiently severe sentence ... ... 408
Procedure of superior Magistrate after ... ... ... 408
When a jury cannot bo constituted the Magistrate to, to another Court on claim
by European British subject for jury ... ... ... ... 491
By High Court to itself .■ ... ... ... ••. 556
Notice to Public Prosecutor of application for ... ... ... 557
On application for, Court may take, bond from accused to secure costs of
prosecution ... ... ... ... ... 557
Application for, to be supported by affidavit ... ... ... 557
Adjournment on application being made before commencement of hearing of
intention to apply for ... ... ... ... ... 557
Court to exsreise power to adjourn case ... ... ... 557
Power of Governor-General to, from one High Court to another ... ... 562
Or from Court subordinate to one High Court to Court subordinate to
another ... ... ... " ... .,, 562
Procedure after such ... ... ... ... ... 562
District or Sub-Divisional Magistrate may withdraw or refer case ... 562
Local (iovernmont to authorize District Magistrate to withdraw classes of cases, 562
Of case by Magistrate not empowered ... ... „, ,„ 564
Index. 803
Page.
Transportation —
Sentence of, not to specify place ••. ... ... ••• 425
Execution of, sentence of ... ... ... ... ••• 429
Sentence of, to take effect after the previous sentence ... .,. 435
Trial-
Ordinary place of enquiry and ... ... ... ... 222
When, may be held by one of several Courts ... ... ...225, 230
When partly held by one Magistrate and partly by another ... ... 409
Trial by Jury—
Appeal to lie on matter of law only in case of ... ... ... 452
Of offences of European British subject whore one is and others are not pun
ishable with death or transportation for life ... ... ... 489
Of European British subject and native jointly ... ... ... 492
Of persons as European British subject who is not ... ... ... 494
Not invalid unless objection taken ... ... ... ... 494
Of European or American jointly with one of another ra"ce ... ,., 495
Of fact of soundness of mind of accused before Sessions or Iligh Court ... 497
Custody of lunatic pending investigation or trial ... ... ... 498
Release of lunatic pending ... ... ... ... 498
Resumption of, after adjournment ... ... ... ... 498
By High Court of case transferred to itself ... ... ... 556
Unanimous verdict—
In High Court to prevail 1... ... ... ... ... 378
Unlawful Assembly-
Dispersion of, on command of Magistrate or police-officer ... ... 109
Use of civil force to disperse ... ... ... ... 110
Any male person may be required to assist in dispersing an ... ... 110
When, cannot otherwise be dispersed military force may be used ... Ill
Duty of officer commanding troops required by Magistrate to disperse ... Ill
Power of commissioned military officer to disperse ... ... ... Ill
Protection against prosecution for acts done ... ... ... Ill
Unlawful Compulsory Labour—
Compoundable ... ... — ••• ••• ... 403
Unlawful Detention—
Of European British subject —application for order to be brought up before
High Court ... ... ... ... ... ... 494
On complaint of, of women or female child under 14 years, Magistrate how to
Act ... ... ... ... ... ... 603
Unlawful Obstruction-
Removal of ... ... ... ... ... ... 114
Unnatural Death—
Po'ice to enquire as to ... ... ... ... ... 917
Examination of body by Civil Surgeon in case of ... ... ... 218
Vagabonds-
Power of police to arrest ... ... ... ... ... 45-
804 Index.
Vagrants-
Defined ... ■•• ... ••• ...
Security for good I>c-haviour from ... ... ... ... 83
Who may require •■• ... ■•• ... ... 83
Sections 109 and 110 do not apply to Europeans ... ... ... 88
Europeans to be dealt with under Act IX of 187-1 ... ... ... 88
Rules. under Vagrancy Act ... ... ... ... ... ~ '
Verdict—
Sec Jury.
Vexatious Complaint-
Award of compensation in case of ... ... ... ... 33$>
Volunteers-
Duty of officer of, in dispersing unlawful assembly wlion called upon by
Mugistrate ... ... ... •• ••■ •■■ 111
Protection of, from prosecution for acts done in dispersing unlawful as
sembly ... ... ••• — ••• ... HI
Volunteers Ac'—
See Act.
Voyage-
Trial of offences committed on a ... ... ... ... 230
Waiver—
By European British subject to plead status ... ••• ... 403
Warrant-
Directed to a person other than Police-officer ... ... ... 31
Any person may aid in executing ... ... ... ... 31
When police may arrest without ... ... ... ... 39
Procedure when Police-officer deputes subordinates ... ... 47
Arrest in case of non-cognizable offence on refusal to give name and address
without ... ... ... ... ... ... 48
Issue of, in lieu of or in addition to, summons ... ... ... 64
Copy of order under section 112 to accompany warrant ... ... 96
Arrest by Police-officer withont, to prevent commission of cognizable offence 171
Inspection of weights and measures by Police-officer without ... ... 171
Issue of, for offence committed beyond local jurisdiction ... ... 232
Issue of, according to fourth column of Schedule II ... ... 288
For execution of sentence of death ... ... ... ... 429
Of transportation ... ... ... ... ... 429
Of imprisonment ... ... ... ... 429
For execution of sentence of imprisonment to be directed to officer in charge
of jail ... ... ... ... ... ... 429
To be lodged with the jailor ... ... ... ... 429
For levy of tine ... ... ... ... ... ... 430
Effect of such ... ... ... ,.. ... 431
Return of, on execution of sentence ... ... ... 137
Index. 805
Page.
Warrant of arrest— -
By actual touch, &c. ... ... ... ... ... 37
Court may direct security to be taken on... ... ... ... 55
To be directed ordinarily to Police-officer... ... ... ... 56
When immediate execution is necessary to whom ■•• ... ... 56
When directed to several persons how to be executed ... ... 56
May be directed to landholders, &c. ... ... ... 56
To be notified or shown on execution ... ... „. ... 57
When, may be executed ... .. ... .„ ... 57
How, to be executed outside jurisdiction ... ... „, ... 57,58
Procedure on arrest ... ... ... ... 58
Issue of. in lieu of or in addition to summons ... ... ... 64
On breach of bond ... ... ... ... ... 65
Any Court may issue, for good behaviour from person disseminating seditious
matter ■•• ... ... ... ... 82
What Magistrate may issue, for offences committed beyond local jurisdiction 232
On appeal against acquittal—High Court may issue ... ... ... 464
If such he issued by unauthorised Magistrate, effect of ,., ... 564
Warrant-case—
Defined .. ... ... ... ... ... ... 5
Enquiry into security for good behaviour proceedings as in ... ... 96
Procedure in, on appearance of accused ... ... ... ... 337
When Magistrate to discharge in ... ... ... ... 337
When charge to be framed in ... ... ... ... ... 333
When accused in, may make his defence ... ... ,„ ... 339
Magistrate to iss,up process for witnesses for defence ... ... 342
When Magistrate may refuse to summon witnesses for accused ... ... 342
May require deposit of reasonable expenses ... ... „, 342
Acquittul or conviction to follow on charge in ... ... ,„ 343
On absence of complainant in, what to follow ... ... ... 343
Evidence how to be recorded in ... ... ... ... 412
Weights and Measures—
When Police-officer may enter to inspect .. ,„ ,.. „. 171
Whipping—
What Court or Magistrate may pass sentence of ... ... ... 15
Execution of sentence of, when and where to bo executed ... ...432, 433
In the presence of officer in charge of jail or Magistrate ... ... 433
Mode of inflicting sontence of ... ... ... ... 433
How to be executed ... ... ... ... ... 433
ftot by instalments ... ... ... ... ... 434
What class of offenders are exempted from sentenco of ... ... 434
Cannot he executed on offender in bad health ... ... ... 434
Except in presence or under certificate of medical officer ... ... 434
When to be stayed ... ... ... ... ... 434
Procedure if punishment of, cannot be inflicted ... ... ... 434
Whipping Act-
See Act ... ... ... ... ... ... 432
Wife-
Order for maintenance of ... ... ... ... „ 517
8o6 Index.
Paob.
Withdrawal—
Of remaining charges on conviction of one .•• w ... 332
Its effect ... ... ... •• ... ... 332
Of case for trial by Magistrate himself ... ... ... ... 662
If ordered by unauthorised Magistrate ... ... ... ... 564
Witnesses—
To house search not to attend Court unless specially required ... ... 74
Bond to be taken by police in investigation for attendance of, before Magis
trate ... ... ... ... ... — 213
Magistrate may issue process for attendance of ... ... ... 290
If refused, reason to be recorded ... ... ... ... 291
When Magistrate may refuse to summon unnecessary, after commitment ... 299
To execute bonds for attendance at Sessions or High Court ... ... 301
On refusal to execute may be detained in custody .. ... 301
Magistrate may summon supplementary ... ... ... ... 302
To be recalled when charge altered ... ... ... ... M3
Discretion with Magistrate to issue process for, in summons-cases ... 333
May require deposit of reasonable expenses ... ... ... 333
Necessary, for prosecutions in warrant-cases ... ... ... 337
When Magistrate may summon at instance of accused ... ... 342
May require necessary expenses to be deposited ... ... ... 342
When jurors or assessors may be examined as ... ... ... 370
Accomplices on conditional pardon may be examined as ... ... 391
Power to postpone or adjourn in absence of ... ... ... 402
Evidence to be read or interpreted ... ... ... ... 414
Objection of, to correctness of evidence to be noted ... ... 414
Remarks respecting demeanour of ... ... ... ... 416
Refusing to answer or produce documents ... ... ... 51*
Attendance of, may be dispensed with—commission to examine may be issued 534
Court may summon material, or examine porson present ... ... 596
Woman-
Mode of searching ... ... ... _ _ 33
Power to search for, wrongfully detained... ... '". 72
Postponement of capital sentenco on pregnant ... ... ... 429
Exempt from sentence of whipping .. ,„ "., "* 434
Wrongful Confinement-
Search-warrant for persons in ... ... ... ... ... 72
Wrongful Restraint—
Compoundable ... ... ... ... ... ... 403
Zenana—
When, may be broken into to make search .. ... ... ... 38

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This is a reproduction of a library book that was digitized

by Google as part of an ongoing effort to preserve the

HARVARD LAW LIBRARY

Received APR 17 1908

Cnto nf Criminal Ijteirarc,

AN INTRODUCTION AND INDEX.

[ALL RIGHTS RESERVED.]

CHANGES MADE BY THE NEW CODE,

18 Paragraph (1) of this section corresponds with the first clause

Addition, omission or other changes made in the new Code.

The offence of voluntarily causing grievous hurt punishable

Paragraph (8) is section 426A of the Code of 1882 added by

General Sugary of the J^ew Code of Criminal procedure.

The appointment and local limits of the jurisdiction of Presidency-Magis

When a person against whom a warrant of arrest is issued has absconded or

For the search of a place which a District Magistrate, Sub-Divisional Magistrate,

IV.- PREVENTION OF OFFENCES.

him to appear and, if he is in custody, a warrant for him to be brought up : if it

CHAPTER IX treats of unlawful assemblies and consists of 6 sections.

CHAPTER X treats of public nuisances and consists of 1 1 sections.

V.— INFORMATION TO THE POLICE AND THEIR

VI.— PROCEEDINGS IN PROSECUTIONS.

or police-officer, he may exercise all the powers of a police-officer, except the

CHAPTER XVIII treats of enquiry into cases triable by the Court

CH APTER XXI treats of trials of warrant-cases by Magistrates

CHAPTER XXII treats of summary trials and consists of 6 sections

(7) The [ilea of the accused ;

CHAPTER XXIV treats of general provisions as to enquiries and

CHAPTER XXV treats of the mode of taking and recording evi

CHAPTER XXVIII treats Of execution and consists of 20 sections.

As to sentences on an escaped convict : if the first sentence was of death, or

CHAPTER XXX treats of previous acquittals or convictions and

VII. -OF APPEALS, REFERENCE AND REVISION.

CHAPTER XXXVIII treats of the Public Prosecutor and consists of

CHAPTER XXXIX treats of bail and consists of 7 sections. It directs

CHAPTER XL treats of commissions for the examination of wit

CHAPTER XLIV treats of the transfer of criminal cases and

CHAPTER XLV treats of irregular proceedings and consists of 10

(5) to take cognizance of an offence under section 190, nub-section 1, clause

No finding or sentence of a competent Court will be reversible by reason of

CHAPTER XLVI treats of miscellaneous provisions and consists

NOTES OF CASES APPEARING IN THE FOUR SERIES OF THE

Pure *>! Maintenance, order of Criminal Court as to—Criminal Procedure Code

Sessions Judge considers that the evidence of an Inspector of police is neces

NOTES OF CASES APPEARING IN THE CALCUTTA WEEKLY

in the Court of first instance on evidence not recorded by him, and on

CODE OF CRIMINAL PROCEDURE, 1898.

(Act No. V of 1898.)

An Act to consolidate and amend the Law relating to

(2) It extends to the whole of British India ; but in the Extent,

* Act No. I of 1871.

includes (1) an advocate, a vakil and an attorney of a

CONSTITUTION AND POWERS OF CRIMINAL

B.— Territorial Division*.

rionTi«nddd!«- 7' O Every province (excluding the presidency-towns) shall

(4) Every presidency-town shall, for the purposes of this Presidency^

(2) The Local Government may, by general or special order

pending the orders of the Local Government, exercise all the

(2) Such Magistrates shall be called Subdivisional Magis

(4) The Sessions Judge may also, when be himself is

(2) The Local Government may, for the purposes of this

Provided that such Judges and Magistrates as now are liable

(a) by the High Court, or