1870

IN THE MATTER OF

THE

according to the argument of the very party who appears to show cause, upon which an appeal could lie. The only contention is that the proceeding under 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 it seems clear to us that no appeal could lie, because there was no judgment 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.

SHEIKH ILAHI

ВАХ.

Before Mr. Justice Markby.

DUTT v. CORNELIUS.

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 deficiency 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 payment before the com

1870 August 9.

1870

DUTT

v.

CORNELIUS.

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.

1870 November 8.

Before Mr. Justice Markby.

HALADHAR DEY v. AMBIKA CHARAN BOSE.

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 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,

(1) Bourke's Rep,, 28.

(2) Id., 51.

(3) Bourke's Rep., 52.

for

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.

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

1870

HALADHAR
DEY

v.

AMBIKA CHARAN BOSE.

Before Mr. Justice Loch and Mr. Justice Glover.

THE QUEEN v. RAI LACHMIPAT SING.*

Code of Criminal Procedure (Act XXV of 1861), s. 62—Prohibitory 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 Rung pore.

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 hât 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 July 9.

1870

QUEEN

v.

RAI LACHMI-
PAT SING.

Judge cited The Queen v. Kalika Prasad (1), In the matter of Hari Mohan Malo (2), The Queen v. Bhyro Dayal Singh and others (3), and In the matter of the petition of Kalidas Bhuttacharjee (4).

(1) Before Mr. Justice L. S. Jackson and Mr.
Justice Markby.

THE QUEEN v. KALIKA PRASAD.

26th January 1869.

JACKSON, J.-It seems to me that we are not called upon to set aside the order of the Magistrate as being contrary to law. I think that the order made in this case was strictly within the provisions of section 64 of the Code of Criminal Procedure. The terms of this section have been made

I suppose that the words used here are the words which the Magistrate employed in drawing up his order. It may very well be that the circumstances did not justify the order made on that particular occasion. As the present case is presented before us, it appears to me that the order is strictly within the Magistrate's competence.

MARKBY, J.-I am of the same opinion. Of course, no one would doubt that, in cases of this kind, a Magistrate ought to be most careful that he does not do more than is

absolutely necessary, in order to preserve the peace, or to prevent the nuisance which is brought before him; but if it has been, as it was in this case, made out that, by the exercise of the strict legal rights of the parties, a breach of the peace has several times occurred, and the Magistrate is of opinion that, by the continuance of the parties to exercise those rights, further breaches will occur, I think he is perfectly justified in making such an order.

and apparently intentionally made-ex-
tremely wide. They enable the Magistrate to
direct any person to abstain from any act, or
to take certain order with certain property in
his possession or under his management, when-
ever such Magistrate shall consider such di-
rection is likely to prevent obstruction, annoy-
ance or injury, or risk of obstruction, to any
person lawfully employed, or is likely to pre-
vent a riot or an affray. The Magistrate con-
sidered in this case (whether rightly or wrong-
ly, we are not called upon to say) that the conti-
nuance of these two hats held on the same day,
upon adjacent pieces of ground, was certain
to lead, as it had already led, to riots and
affrays, and also to annoyance or injury to
persons lawfully employed; and that, by IN THE MATTER OF THE PETITION OF KA-

directing the parties to abstain from holding
the hats on the same day, he was likely to
prevent those injurious results. It appears
to me that it is precisely such a case as is
contemplated by the section. Several cases
have been cited to us, in which it is contend-
ed that the Judges have held an opposite
opinion. The only case however precisely
bearing on the present point is the case of
Sheeb Chunder Bhattacharjee v. Saadut
Ally Khan (a). We have not got the
facts of that case before us; but so far as we
can judge, the case was not precisely, on all
fours, with the present. Mr. Justice Trevor
observes:-"I am clearly of opinion that
"these words do not authorize a Magistrate
66 to interfere with the exercise of any of his
"ordinary rights by a landholder, merely
“because such exercise may require vigilance
66 on the part of the Police, and may, in the
"absence of such vigilance, lead to an affray."

(2) 1 B. L. R., A. Cr., 20.
(3) 3 B. L. R., A. Cr., 4.

(4) Before Mr. Justice Kemp and Mr. Jus-
tice Markby.

LIDAS BHUTTACHARJEE.

3rd August 1869.

KEMP, J.-This was a reference, under section 434 of the Code of Criminal Procedure, by the Sessions Judge of the 24-Pergunnas, in a case in which he is of opinion that the order of the Cantonment Magistrate of Barrackpore is illegal, and ought to be quashed. It appears that in this case, Kalidas Bhuttacharjee petitioned the Magistrate that the defendant, Mahendranath Chuttopadhya, was erecting a wall, which obstructed the drain of his (the plaintiff's) house. petition was presented on the 8th June, and Kalidas was examined briefly. He stated that the drain was an old one, and that Mahendranath, in erecting a wall, was obstructing that drain. The Magistrate directed the Police to stop the erection of the wall, and intimated his intention of visiting the

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

His

Baboo Rasbehari Ghose for Lachmipat Sing.

Baboo Jagadanand Mookerjee for Government.

The judgment of the Court was delivered by

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
on the 11th June, the Magistrate took up the
case, and held that section 308 of the Crimi-
nal Procedure Code did not apply to the
case; but as there was no apprehension of a
breach of the peace, he referred the plaintiff
to a Civil Court for redress. On the same
date, the Magistrate states that, after writing
the above order, section 62 of the Code of
Criminal Procedure Code was brought to his
notice as one under which he could dispose
of the case; and that as he was of opinion
that the plaintiff was in possession of the
drain, and the defendant's building a wall
would cause an obstruction of the drain, and
an inconvenience and annoyance to the per-
sons living in the house, he should be prevent-
ed from doing so. He therefore made an order,
under section 62, that the defendant was to
leave the drain open, and to cease building the
wall. It has been contended before us that,
having passed the first order, the Magistrate
was not competent to pass any orders at all
under section 62; and that even if he was
competent to do so, he ought to have given
the defendant an opportunity of being pre-
sent, and of being heard, so as to enable him
to shew cause why such an order should not
be passed. We think that, on the first con-
tention, the Magistrate was competent when
he found that the plaintiff's case did not
come under the section under which he had
put it, viz., section 308, to apply any other
section of the Code of Criminal Procedure
which applied to that case: but we think
that, before proceeding to apply section 62,
the Magistrate ought to have given the de-
fendant, Mahendranath, an opportunity for
showing cause, either by giving evidence or
shewing in any way in his power why the
provisions of section 62 should not be applied
to this case. Not having done so, we think
that the decisions of the Magistrate are irregu-
lar, and that they must be set aside. This order
will not prevent the Magistrate from taking
up the case again on a formal application from
Kalidas Bhuttacharjee; and after hearing both
parties, and making necessary inquiries, from

passing such orders as he may deem right
and proper.

MARKBY, J.-I am of the same opinion.
There is a good deal of what was said by the
Sessions Judge in his order of reference
with which I am not at present prepared to
concur; nor am I at present prepared to
say that this was not a case in which the
Magistrate could pass an order under sec-
tion 62, or that there was not evidence
before him sufficient for that purpose.
Moreover, my opinion at present is that
a Magistrate is not bound to adhere to any
particular section which may happen to
be mentioned by the complainant in his com-
plaint, but he may apply any section of the
law which he thinks applicable to the case as
long as the parties are not misled, and as
long as the proper procedure prescribed for
the purpose has been observed. Nor do I
doubt that a Magistrate who has made an
order which he finds to be wrong may re-call
that order, and in its stead substitute any
other order he may think right under the law.
But my ground in concurring to set aside the
orders of the Magistrate in this case is that
the alteration made by the Magistrate was
made in the absence of the parties after they
had left the Court, and there is nothing in
this record which could satisfy us that it
was brought to the notice of the parties that
that order was about to be re-called, or that
they had any opportunity of showing cause
why it should not be so re-called and altered.
The order passed under section 62 is thus
illegal, being passed ex parte by the Magis-
trate, without the knowledge of the parties,
and in a manner behind their backs after
they had left the Court, thinking that the
case had been finally disposed of by the
Magistrate under another section, and having
no idea that the first order passed by the
Magistrate was going to be set aside. On
that ground, and on that ground alone I think
that the Magistrate's orders should be set
aside.

1870

QUEEN

v.

83

RAI LACHMI-
PAT SING.