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according to the argument of the very party who appears to show cause, upon 1870 which an appeal could lie. The only contention is that the proceeding under

MATTER OF the arbitration was void, and there was no judgment by the Moonsiff of his own, but only a decree according to the award. Upon this fact alone, however, Petition of

SHEIKH ILAHI it seems clear to us that no appeal could lie, because there was no judgment Bax. to appeal against.

We think, therefore, that the Judge acted without jurisdiction in this case, and that his judgment must be set aside, and this rule made absolute with costs.

Before Mr. Justice Markby.


1870 August 9.

Subsistence-money-Discharge-Act VIII of 1859, ss. 276, 278.

A prisoner was arrested on August 4th, and committed to prison on the evening of the same day. Before his committal, the execution-creditor paid into the hands of the jailor a sum sufficient for his subsistence-money for 27 days, at the established rate of 4 annas per day. On the 5th August, a writ of habeas corpus was applied for to bring the prisoner up, and on the 6th, a further sum of 4 annas was paid to the jailor to cover any deficieney in the former payment.

Held, that the requirements of section 276, Act VIII of 1859, had not been fulfilled, and that the prisoner was entitled to his discharge under section 278.

This was an application for discharge of the defendant from custody, on the ground that his subsistence-money had not been paid in accordance with section 276 of Act VIII of 1859. The defendant was brought up in obedience to a writ of habeas corpus which had been issued to the jailor.

Mr. Kennedy for the prisoner.

Mr. Bonnerjee for the execution-creditor.

MARKBY, J.-I think the applicant is entitled to his discharge. He was arrested on the 4th August, and committed to prison on the evening of that day. Before the committal, the plaintiff paid into the hands of the proper officer the sum of rupees 6-12, which, at the rate established of 4 annas a day, would be his subsistence-money for 27 days. Now the first question that arises is whether that was a compliance with section 276 of Act VIII of 1859. What strictly remained unexpired was 27 days and 6 or 7 hours, and I do not think that the payment for 27 days only is a compliance with what the section requires. Then, it appears that, on the 5th August, application was made for a habeas corpus to bring up the body of the prisoner, and on the following day, the sum of 4 annas was paid to the jailor to supply any deficiency in the previous payment. It has been contended that, inasmuch as there always was in the hands of the jailor money sufficient for the maintenance of the prisoner, and the deficiency of yment before the com




mittal was immediately supplied, the prisoner ought not be released. I do not think that this has been decided by the cases of Speyer v. Janssen (1), In re Konoyloll Doss (2), and Aga Ali Khan v. Joydoyal Persaud (3), to which reference has been made ; but there are expressions in those cases which show how Mr. Justice Phear would have decided it if it had come before him. He says generally, and I concur with him, that section 276 must be construed strictly, and we are not to consider whether the prisoner suffered; and I am bound to hold the creditor to section 278 of the Act, and to say that the defendant should be released on the detaining creditor omitting to pay the allowance as above directed,—that is, as directed by section 276. I have already held that the creditor did not pay as directed, and I find nothing to authorize me to say that the payment on a subsequent date would be sufficient. As to whether the original arrest was illegal, I do not think the question is before the Court, and I refrain from expressing any opinion upon it.

Before Mr. Justice Markby.


1870 November 8.

Subsistence-money-Discharge-Act VIII of 1859, ss. 276, 278.

On the 30th of September, the plaintiff, a detaining creditor, paid to the jailor of the Calcutta Jail subsistence-money for 30 days, for a prisoner confined at the suit of the plaintiff, the jailor then having a balance of 4 annas over from the subsistence-money for September.

Held, a sufficient compliance with section 276 of Act VIII of 1859.

This was an application for a rule nisi calling on the plaintiff to show cause why the defendant, a prisoner in the Calcutta Jail, should not be discharged from custody. The defendant was confined in execution of a decree obtained against him by the plaintiff in the above suit.

It appeared that the prisoner's subsistence-money had been paid up to the end of September; on the 30th of which month, the jailor had a balance of 4 annas in favor of the detaining creditor, the plaintiff. On that day a further sum of rupees 7-8, being subsistence-money for 30 days, at the rate of 4 annas a day, was handed over to the jailor as the diet-money for October.

Mr. Hyde, in support of the application, contended that, as the provisions of section 276, Act VIII of 1859, had not been complied with by the plaintiff, the defendant was entitled to his discharge under section 278. By section 276, " sufficient" subsistence-money must be supplied “by monthly payments, in “advance, before the first day of each month.” Here subsistence-money

for only 30 days had been paid instead of 31. The balance of 4 annas from the September payment could not be treated as part of the October payment,

(3) Bourke's Rep., 52.

(1) Bourke's Rep., 28.
(2) Id., 51.


without some arrangement with the jailor to transfer it to that account, which had not been made. The prisoner was therefore entitled to his discharge. HALADHAR


v. MARKBY, J.-No doubt the section ought to be construed strictly, but I am


CHARAN BOSE. of opinion that this application should be refused. Section 276 of Act VIII of 1859 says that sufficient subsistence-money must be paid to the jailor before the commencement of the month for which it is paid. The plaintiff in this case had paid sufficient money for the month of October into the hands of the jailor prior to the commencement of that month. It is in fact admitted that the jailor had, on the 30th September, sufficient money for the month of October. This being so, I do not think the prisoner is entitled to his discharge.

Attorneys for the prisoner : Messrs. Ghose and Bose.

Before Mr. Justice Loch and Mr. Justice Glover.


1870 July 9,

Code of Criminal Procedure (Act XXV of 1861), s. 62Prohibitory Order.

Under section 62 of the Code of Criminal Procedure, a Magistrate cannot pass a prohibitory order, without having previously issued a rule to show cause why the order should not be passed.

This case was submitted, for the opinion of the High Court, by the Sessions Judge of Rungpore.

In the district of Bogra, a dispute arose between two zemindars, about two neighbouring hâts. A serious breach of the peace occurred, and a Deputy Magistrate investigated the case on the spot. The Magistrate of the district afterwards took up the matter, and bound down certain of the parties under recognizances to keep the peace. On the same day, without giving the parties any formal notice, or any opportunity of showing cause against the order, he passed an order, under section 62, directing that the market-day in one hâl should be changed.

The Magistrate's order was :—“I direct, under section 62, Criminal Procedure “ Code, that a written order be served upon the defendants prohibiting them “from holding the hât at Muradpur on Mondays and Thursdays."

In support of his opinion, that the Magistrate's order was illegal, the Sessions


* Reference, under section 434 of the Code of Criminal Procedure, by the Sessions Judge of Rungpore, in his letter No. 361, dated 17th June 1870.


1870 Judge cited The Queen v. Kalika Prasad (1), In the matter of Hari Mohan

QUEEN Malo (2), The Queen v. Bhyro Dayal Singh and others (3), and In the matter Ru Licinic of the petition of Kalidas Bhuttacharjee (4). PAT Sixg. (1) Before Mr. Justice L. S. Jackson and Mr. I suppose that the words used here are the Justice Markby.

words which the Magistrate employed in

drawing up his order. It may very well be THE QUEEN v. KALIKA PRASAD.

that the circumstances did not justify the 26th January 1869.

order inade on that particular occasion, As

the present case is presented before us, it Jackson, J.-It seems to me that we are

appears to me that the order is strictly not called upon to set aside the order of the within the Magistrate's competence. Magistrate as being contrary to law. I think that the order made in this case was

MARKBY, J.-I am the same opinion. strictly within the provisions of section 64

Of course, no one would doubt that, in cases of the Code of Criminal Procedure. The

of this kind, a Magistrate ought to be most terms of this section have been made

careful that he does not do more than is and apparently intentionally made-ex- absolutely necessary, in order to preserve tremely wide. They enable the Magistrate to

the peace, or to prevent the nuisance which direct any person to abstain from any act, or

is brought before him; but if it has been, to take certain order with certain property in

as it was in this case, made out that, by the his possession or under his management, when- exercise of the strict legal rights of the ever such Magistrate shall consider such di- parties, a breach of the peace has several rection is likely to prevent obstruction, annoy- times occurred, and the Magistrate is of opiance or injury, or risk of obstruction, to any

nion that, by the continuance of the parties person lawfully employed, or is likely to pre

to exercise those rights, further breaches will vent a riot or an affray. The Magistrate con

occur, I think he is perfectly justified in sidered in this case (whether rightly or wrong- making such an order. ly, we are not called upon to say) that the conti- (2) 1 B. L. R., A. Cr., 20. nuance of these two háts held on the same day, (3) 3 B. L. R., A. Cr., 4. upon adjacent pieces of ground, was certain

(4) Before Mr. Justice Kemp and Mr. Justo lead, as it had already led, to riots and

tice Markby. affrays, and also to annoyance or injury to persons lawfully employed; and that, by IN THE MATTER OF THE PETITION OF KAdirecting the parties to abstain from holding LIDAS BHUTTACHARJEE, the hâts on the same day, he was likely to

3rd August 1869. prevent those injurious results. It appears to me that it is precisely such a case as is KEMP, J.— This was a reference, under contemplated by the section. Several cases section 434 of the Code of Criminal Procehave been cited to us, in which it is contend- dure, by the Sessions Judge of the 24-Pered that the Judges have held an opposite gunnas, in a case in which he is of opiopinion. The only case however preciselynion that the order of the Cantonment Magisbearing on the present point is the case of trate of Barrackpore is illegal, and ought to Sheeb Chunder Bhattacharjee v. Saadut be quashed. It appears that in this case, KaliAlly Khan (a). We have not got the das Bhuttacharjee petitioned the Magistrate facts of that case before us; but so far as we that the defendant, Mahendranath Chuttocan judge, the case was not precisely, on all padhya, was erecting a wall, which obstructed fours, with the present. Mr. Justice Trevor the drain of his (the plaintiff's) house. His observes :—“I am clearly of opinion that petition was presented on the 8th June, and " these words do not authorize a Magistrate Kalidas was examined briefly. He stated "to interfere with the exercise of any of his that the drain was an old one, and that Ma" ordinary rights by a landholder, merely hendranath, in erecting a wall, was obstruct“ because such exercise may require vigilance ing that drain. The Magistrate directed “on the part of the Police, and may, in the the Police to stop the erection of the wall, "absence of such vigilance, lead to an affray." and intimated his intention of visiting the

(a) 4 W. R., Cr., 12.

Baboo Rasbehari Ghose for Lachmipat Sing.


QUEEN Baboo Jagadanand Mookerjee for Government.

RAI LACHMIThe judgment of the Court was delivered by

PAT Sing. Loch, J.-After reading the report of the Judge, we think that the order passed by the Magistrate under section 62 of the Criminal Procedure Code spot in person. This was on the 8th June; and passing such orders as he may deem right on the 11th June, the Magistrate took up the and proper. case, and held that section 308 of the Criminal Procedure Code did not apply to the MARKBY, J.-I am of the same opinion. case; but as there was no apprehension of a There is a good deal of what was said by the breach of the peace, he referred the plaintiff Sessions Judge in his order of reference to a Civil Court for redress. On the same with which I am not at present prepared to date, the Magistrate states that, after writing concur ; nor am I at present prepared to the above order, section 62 of the Code of say that this was not a case in which the Criminal Procedure Code was brought to his Magistrate could pass an order under secnotice as one under which he could disposetion 62, or that there was not evidence of the case; and that as he was of opinion before him sufficient for that purpose. that the plaintiff was in possession of the Moreover, my opinion at present is that drain, and the defendant's building a wall a Magistrate is not bound to adhere to any would cause an obstruction of the drain, and particular section which may happen to an inconvenience and annoyance to the per- be mentioned by the complainant in his comsons living in the house, he should be prevent- plaint, but he may apply any section of the ed from doing so. He therefore made an order, law which he thinks applicable to the case as under section 62, that the defendant was to long as the parties are not misled, and as leave the drain open, and to cease building the long as the proper procedure prescribed for wall. It has been contended before us that, the purpose has been observed. Nor do I having passed the first order, the Magistrate doubt that a Magistrate who has made an was not competent to pass any orders at all order which he finds to be wrong may re-call under section 62; and that even if he was that order, and in its stead substitute any competent to do so, he ought to have given other order he may think right under the law. the defendant an opportunity of being pre- But my ground in concurring to set aside the sent, and of being heard, so as to enable him orders of the Magistrate in this case is that to shew cause why such an order should not the alteration made by the Magistrate was be passed. We think that, on the first con- made in the absence of the parties after they tention, the Magistrate was competent when had left the Court, and there is nothing in he found that the plaintiff's case did not this record which could satisfy us that it come under the section under which he had

was brought to the notice of the parties that put it, viz., section 308, to apply any other that order was about to be re-called, or that section of the Code of Criminal Procedure they had any opportunity of showing cause which applied to that case: but we think why it should not be so re-called and altered. that, before proceeding to apply section 62, The order passed under section 62 is thus the Magistrate ought to have given the de- illegal, being passed ex parte by the Magisfendant, Mahendranath, an opportunity for trate, without the knowledge of the parties, showing cause, either by giving evidence or and in a manner behind their backs after shewing in any way in his power why the they had left the Court, thinking that the provisions of section 62 should not be applied case had been finally disposed of by the to this case. Not having done so, we think Magistrate under another section, and having that the decisions of the Magistrate are irregu- no idea that the first order passed by the lar, and that they must be set aside. This order Magistrate was going to be set aside. On will not prevent the Magistrate from taking that ground, and on that ground alone I think up the case again on a formal application from that the Magistrate's orders should be set Kalidas Bhuttacharjee; and after hearing both aside. parties, and making necessary inquiries, from

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