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1870

QUEEN

u. DΠΟΝΑ BHOOYA.

mentioned in the preceding clause, and that “any person convicted on a trial” held by such officer, means on a trial held by the officer as a Court of Session.

It appears that, in other cases of like appeals, several Division Benches of this Court have entertained the appeal, and therefore it seems to be necessary to refer the point for the decision of a Full Bench. It is a matter of importance, because if the High Court be required to hear appeals from Magistrates who are invested with this jurisdiction, no matter what the nature of the offence or the amount of punishment may be, a very considerable amount of additional business will be thrown upon the Court.

MITTER, J.-I concur in the order of reference, but I express no opinion on the point referred.

The opinion of the Full Bench was delivered by

JACKSON, J.-We are of opinion that an appeal lies to the High Court, only when the conviction has been come to under the powers specified in section 445 A, Act VIII of 1869.

Before Sir Richard Couch, Kt., Chief Justice, Mr. Justice Bayley, Mr. Justice

Kemp, Mr. Justice L. S. Jackson, and Mr. Justice Phear.
THE QUEEN v. NARAYAN NAIK AND ANOTHER.*

1870 Aug. 23.

Code of Criminal Procedure ( Act XXV of 1861), Chap. XI-Complaint, Irre

gulurity in recording - Power of the Court of Session. A Court of Session is competent to proceed to the trial of a prisoner brought before it upon a charge by a Magistrate authorized to make a commitment, though the complaint or authorization be contained only in a letter from the Judge of that Court to the Magistrate of the district, sent with the record of the case, notwithstanding an irregularity or defect of form in recording the complaint.

The complaint or authorization of the Court before which, or against the authority of which, an offence mentioned in Chap. XI of the Code of Criminal Procedure is alleged to have been committed, is a sufficient warrant for commencement of criminal proceedings.

The Queen v. Mahim Chandra Chuckerbutty (1) overruled.

* Case called for from the Sessions Judge of Cuttack, on revision of the Jail Delivery Statements of his District for the month of May last.

(1) 3 B. L. R., A. Cr., 67.

1870

QUEEN

V. NARAYAN

NAIK.

The following questions were referred to a Full Bench by L. S. JACKSON and MITTER, JJ.

1st. Whether a Court of Session is not competent to proceed to the trial of a prisoner brought before it upou the charge of a Magistrate who is authorised to make a commitment, although it should be objected that there has been some irregularity or defect of form in recording the complaint.

2nd.Whether in the class of cases to which the 11th Chapter of the Code of Criminal Procedure relates, the complaint or authorization of the Court, before which or against the authority of which such offence is alleged to have been committed, is not sufficient warrant for commencement of criminal proceedings.

The questions were referred under the following remarks by

L. S. JACKSON, J.-The case of Narayan Naik and Ram Naik was called for by this Court on a review of the abstract statements of the Court of Session of Zilla Cuttack. The proceedings having come up, it appears that these persons were severally charged with having given false evidence in a judicial proceeding under section 193, Indian Penal Code, and that the Court of Session, without proceeding to trial, has discharged the accused persons on the ground of certain irregularities set forth fully in the case of Narayan Naik, on reference to the judgment

, in which case that of Ram Naik has been disposed of.

It seems that these persons gave the evidence which was charged as being false before the Deputy Magistrate, who, after disposing of the case in which the evidence was given, sent the record to the Magistrate of the district with a letter saying that he charged the prisoners with giving false evidence. Thereupon the Magistrate made an order referring the case to another Deputy Magistrate, who thereupon summoned the parties, and after taking evidence committed the prisoners to the Sessions.

The Judge is of opinion that as no formal complaint was made under section 66, Code of Criminal Procedure, nor charge preferred under section 135 before the Police, the Deputy Magistrate or the Magistrate of the district was not authorised to take up the case, and consequently the preliminary proceed

1870

QUEEX

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ings were illegal and void, and the commitment also illegal.
He comes to this conclusion on the authority of the case of
The Queen v. Mahim Chandra Chuckerbutty (1), in which the
prisoners, who had been convicted under the 183rd and other
sections of the Indian Penal Code, had their conviction quashed,
and were discharged.

The decision in question was one of Justices Kemp and
Markby. It has, undoubtedly, gone the length

of holding that
no trial in a Court of Session can be properly held in which

the proceedings had not commenced in one of the three modes whely described in sections 66, 68, and 135, Code of Criminal Promismuder- cedure.

With great respect to the learned Judges who held this opinion, it seems to me that Courts of Session are required to take cognizance of offences upon a charge preferred by a Magistrate empowered under the Code to make commitments to such Courts, and that if such commitment has been made, and the trial in the Court of Session has been properly held, the accused person should not be allowed to have the trial and conviction quashed upon the ground of any defect in the mode of recording the original complaint; and it also appears to me that in the class of cases referred to in section 169, the letter of the Deputy Magistrate, before whom the alleged false evidence was given, was an amply sufficient ground for the commencement of the proceedings. I should have thought, if it had not been for the decision already cited, that in the case of offences specified in section 168 of the Code of Criminal Procedure, the letter of the Judge of the Court of Small Causes, which was the foundation of the proceedings in that case, was still more abundantly sufficient, because the Code says that “a charge of contempt of “ the lawful`authority of any Court or public servant shall not be “ entertained in any Criminal Court except with the sanction or

on the complaint of the Court or public servant concerned.” It appears to me that when that Court addresses a public proceeding to the Magistrate complaining of the offence described, that that is a sufficient foundation for criminal proceedings, and

(1) 3 B. L. R., A. Cr. 67.

1870

QUEEN

NARAYAN
NAIK.

that the Judge of that Court is not bound to come before the Magistrate and lodge a complaint and sign it in the ordinary manner, though it might be necessary for him to give evidence.

But even if the recording of a complaint were prescribed, it seems to me that the omission to record such a complaint, through the usual forms, would not be a ground on which the prisoner would be entitled to have the conviction set aside. If this case had come before me, and the case of The Queen v. Mahim Chandra Chuckerbutty (1) had not occurred, I should certainly have been disposed to set aside the order of the Sessions Judge, and to direct the prisoners to be tried. It appears to me that we cannot make that order without coming in direct conflict with the ruling referred to; and therefore it is necessary to make a reference in this case to a Full Bench.

The opinion of the Full Bench was delivered by

L. S. JACKSON, J.-We are of opinion that the Court of Session is competent and ought to proceed to the trial of a prisoner who is brought before it upon a charge exhibited by a Magistrate who is authorized to make a commitment, notwithstanding any irregularity or defect of form in recording the complaint.

Also that, in the class of cases specified in the second question referred, the complaint or authorization of the Court concerned is a sufficient warrant for the commencement of criminal proceedings.

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[APPELLATE CIVIL.]

Before Mr. Justice Bayley and Mr. Justice Markby.

BABOO MOHAN LAL BHAYA GYAL AND ANOTHER (PLAINTIFFS) v.

LACHMAN LAL (DEFENDANT).*

1870 June 22.

Act VIII of 1859, s. 2-Act XIV of 1859, s. 1–Cause of Action

Res Judicata.

A., a Hinda of Gya, died, leaving a sister B., and C. the son of a deceased sister. On A.'s death. B. took possession of the property left by A. In a suit by C. against B. for recovery of possession thereof, as heir to his maternal uncle, the Court of first

* Regular Appeal, No. 8 of 1870, from a decree of the Subordinate Judge of Gya, dated the 2nd October 1869.

(1) 3 B. L. R., A. Cr., 67.

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1870 instance held that B. should retain possession of the property during her life-time, Baboo Mohan without power of waste ; and that on her death, C. should be entitled to the possession LAL BHAYA thereof. This was reversed by the High Court on appeal, who held that “the decree GYAL

should have been simply a decree of dismissal” of the plaintiff's suit. LACHMAN

B. died, leaving an adopted son, D. C. sued D. for recovery of possession of the LAL.

property, the subject-matter of the former suit, on the ground that D. was not the adopted son of B., and that C., "who came within the class of bandhus, was entitled to succeed to the property left by A. and B., there being no nearer heir in existence.” Held, that section 2, Act VIII of 1859, did not bar the suit.

This was a suit to recover certain landed property, by right of inheritance as founded on the Mitakshara law of the Benares school.” The plaint stated that Sitaram Meherwar, the maternal uncle of the plaintiffs, died on the 6th Falgun 1264, Fasli (14th February 1857), leaving the plaintiffs, his sisters' sons, and his sisters, Mussamat Inderkumari Dai and Padam Dai, and the properties in dispute; that Mussamat Inderkumari Dai succeeded Sitaram Meherwar, and remained in possession of his estate, and died on the 21st May 1868, leaving no issue ; that, on the death of Inderkumari, the Government laid claim to the property as an escheat; that thereupon the plaintiffs had applied for the release thereof, on the ground of their right of inheritance; that in that case the defendant had intervened on an allegation of a pretended adoption by Inderkumari; that the case was disposed of under a proceeding dated 21st October 1868, with the following order:—“A sister's son is entitled to inheritance, and when two parties assert their right to succeed, how can the estate be confiscated by Government ?” that the defendant has obtained possession, both of the real and personal property ; that the defendant was not the adopted son of Inderkumari Dai, and therefore was not entitled to the property in dispute ; and that the plaintiffs, who came within the class of bandhus, were entitled to succeed to the property left by Inderkumari and Sitaram, there being no nearer heir in existence.

The defendant set up, inter alia, that, whereas, after the demise of Sitaram, the plaintiffs' claim for inheritance to the property left by Sitaram had been disallowed in a suit brought by the present plaintiffs against Inderkumari, the plaintiffs were barred from bringing the present suit; and that, as he was the adopted son of Inderkumari, he was entitled to retain possession of the property in dispute.

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