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Emperor Vs. Malhari Laxman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 310 of 1926
Judge
Reported in(1927)29BOMLR186
AppellantEmperor
RespondentMalhari Laxman
Excerpt:
.....1924.), sections 25, 16-rule 171-criminal tribe-registered member-release on probation -criminal tribes settlement officer-cancellation of probation-order of return to settlement--disobedience of the order-enforcement of order by magistrate-general clauses act (x of 1897), section 21-bombay general clauses act (bom. act 1 of 1904), section 21.;the accused, who was a registered member of a criminal tribe, was placed ill the sholapur settlement. after some time he was released on probation and allowed to go to bombay. in bombay, his probation was cancelled for misconduct and he was ordered by the criminal tribes settlement officer to go back to the sholapur settlement. for disobedience of this order, the accused was arrested and placed before a magistrate who ordered him to be..........was already settled at sholapur and was in bombay on probation. on december 22, 1925, the criminal tribes settlement officer ordered accused's probation to be cancelled for misconduct, and the accused was ordered to be returned to the sholapur settlement. this order was communicated to the accused on june 24, 1926. on july 19, the accused was definitely informed that he had to return to sholapur immediately, and as he refused to go to sholapur he was arrested on july 21, 1926, at 5 p.m. and was placed before the magistrate. the acting fourth presidency magistrate held that the accused's case fell under section 25 (a) of the act as he was found in bombay after he was asked to go or restrict himself to sholapur settlement.2. it is argued on behalf of the accused that the order ex. b of.....
Judgment:

Patkar, J.

1. In this case the accused Malhari Laxman was registered at Deolali as a member of a criminal tribe, on March 25, 1920. By Government Resolution No. 5012, dated May 20, 1921, the Mang Garudis registered at Deolali were ordered to be placed in the Sholapur Settlement. It appears that the accused was in the Sholapur Settlement from July to October 12, 1921, On October 13, 1921, the accused was released on probation and allowed to go to Bombay and his roll-call was cancelled. There was no settlement at Bombay at that time, but later on the Dharavi Settlement came into existence in 1925, and the accused got himself registered on December 3, 1925. The accused did not disclose to the Bombay Police that he was already settled at Sholapur and was in Bombay on probation. On December 22, 1925, the Criminal Tribes Settlement Officer ordered accused's probation to be cancelled for misconduct, and the accused was ordered to be returned to the Sholapur Settlement. This order was communicated to the accused on June 24, 1926. On July 19, the accused was definitely informed that he had to return to Sholapur immediately, and as he refused to go to Sholapur he was arrested on July 21, 1926, at 5 P.M. and was placed before the Magistrate. The acting Fourth Presidency Magistrate held that the accused's case fell under Section 25 (a) of the Act as he was found in Bombay after he was asked to go or restrict himself to Sholapur Settlement.

2. It is argued on behalf of the accused that the order Ex. B of December 22, 1925, is not a legal order, on the ground that the Criminal Tribes Settlement Officer had no power to cancel the order of probation ; that Section 25 of the Criminal Tribes Act did not apply; and that the accused could only be ordered to return to the Settlement by the Local Government under Section 16 of the Act.

3. We cannot go into the merits of the order. Under Rule 17 of the Rules framed by a Government Notification No. 1794-II dated July 22, 1924 :-

A registered member of a criminal tribe placed in a settlement under Section 16 of the Act and discharged from the operation of the Act shall, for such period from the date of such discharge (not being more than six years) as the Criminal Tribes Settlement Officer shall determine : (a) reside in such place as the Criminal Tribes Settlement Officer may from time to time determine....

4. If the accused was released on probation from the Sholapur Settlement, the Settlement Officer had power to determine from time to time the place where the accused should reside, and if the Settlement Officer by his order Ex. B, dated December 22, 1925, ordered him to be transferred to the Sholapur Settlement, his place of residence was, therefore, determined by Ex. B to be in the Sholapur Settlement, and if he was found outside Sholapur, that is in Bombay City, he was found in a part of British India beyond the area or place of residence to which his movements had been restricted or in which he had been settled within Section 25 (1) (a) of the Criminal Tribes Act VI of 1924. The accused, was, therefore, liable to be arrested without warrant by any Police Officer and to bo taken before the Magistrate who on proof of the facts is empowered to order him to be removed to such Settlement as the case may he. The Settlement Officer, in our opinion, had power under Rule 17 (1) (a) to pass the order of December 22, 1925, and in the absence of any such rule we think that under a 21 of the Bombay General Clauses Act I of 1904, where a power is given by any Act, then that power includes a power to amend, vary or rescind such order. The order, therefore, passed by the Criminal Tribes Settlement Officer is, in our opinion, legal, and, therefore, the accused was properly dealt with under Section 25 of the Criminal Tribes Act.

5. It is argued on behalf of the Crown that the breach of Rule 17(1) rendered the accused liable to be placed in a Settlement in accordance with the provisions of Section 16 of the Act. It is argued by the pleader on behalf of the accused that the order of the Local Government was necessary before the accused could be placed in a settlement under Rule 17 (2). It is not, in my opinion, necessary to go into this question as I think the Settlement Officer had power under Rule 17 (1) (a) to determine from time to time the place where the accused should reside. He had also power under Section 21 of the Bombay General Clauses Act I of 1904 to vary or rescind his previous order. The accused being found beyond the area or place of residence in which he has been settled, he was liable to be arrested and dealt with under Section 25 of the Act.

6. We think, therefore, that the order passed by the lower Court is correct and the rule will, therefore, be discharged.

Baker, J.

7. This is an application by the applicant Malhari Laxman for revision of an order made by the acting Fourth Presidency Magistrate under a 25 (a) of the Criminal Tribes Act VI of 1924. The facts are that the applicant, who is a Mang Garudi by caste, was enrolled at Deolali as a member of a criminal tribe. By Government Notification No. 5012, dated May 20, 1921, published in the Bombay Government Gazette for 1921 at page 1312, he and other Nasik Mang Garudis were transferred to the Sholapur Settlement under Section 16 of the Act. On October 13, 1921, the Criminal Tribes Settlement Officer directed him to be sent to Bombay on probation under Rule 17 (1) (a) of the Rules under the Criminal Tribes Act. That order was cancelled by the Criminal Tribes Settlement Officer, and the accused was directed to return to Sholapur. This order was served upon him, but he did not obey it, and he was, accordingly, brought before the. Magistrate, who under Section 25 of the Act directed him to be returned to Sholapur.

8. This order is attacked on several grounds. It is contended that the Criminal Tribes Settlement Officer had no power to cancel the order of probation ; that Section 25 of the Act does not apply ; and that the applicant can only be returned to the Settlement under orders of the Local Government under Section 16 of the Act. It is contended that under the Rules no power is conferred on the Criminal Tribes Settlement Officer to cancel an order of probation. . Release on probation is necessarily of a conditional character, and although there may be no express rule authorizing the cancellation of such an order, it would be strange to suppose that an order made subject to conditions could not be varied or rescinded, if the conditions were not complied with : cf. Section 21 of the Indian General Clauses Act X of 1897 and the same section of the Bombay General Clauses Act I of 1904. Further, under Rule 17 (1) (a) of the Rules in force the Criminal Tribes Settlement Officer is empowered to prescribe the area in which a person so released should reside.

9. Under Section 25 (1) (a) when a registered member of a criminal tribe 'is found in any part of British India, beyond the area or place of residence, if any, to which his movements have been restricted or in which he has been settled without the prescribed pass, or in a place or at a time not permitted by the conditions of his pass', he 'may be arrested without warrant by any police-officer, village-headman or village-watchman, and may be taken before a Magistrate, who, on proof of the facts, shall order him to be removed to such area or place.'

10. It is contended that this section did not give the Magistrate power to order the removal of the accused to the Sholapur Settlement, since it is only under sub-clause (b) of Section 25, when a person has escaped from an industrial, agricultural or reformatory settlement, or school, that he may be taken back to the Settle. ment. I am unable to accept this reasoning. The present is not a case of escape, but the applicant was found living beyond the area prescribed for his residence, and the Magistrate, therefore, had power under this section to order him to be removed to the place in which he ought to have resided. It is unnecessary to go into the merits of the order of cancellation of the release on probation, which is not before us, and was not questioned on the merits.

11. It is again contended that Rule 17 (2) which prescribes that a breach of the provisions of Rule 17 (1) regarding residence in the area determined by the Criminal Tribes Settlement Officer renders the person discharged liable to be returned to a Settlement as defined in Section 16 of the Act, requires a special order of the Local Government. Section 16 of the Act says :-

The Local Government may establish industrial, agricultural or reformatory settlements and may order to be placed in any such settlement any criminal tribe, or any part or member of a criminal tribe, in respect of which or of whom a notification has been issued under Section 11.

12. I am of opinion that the argument of the Government Pleader is correct, and the reference to Section 16 in Rule 17 (2) is only descriptive as showing the meaning of the word settlement. The Act and the Rules thereunder must be construed in a reasonable manner. If the Criminal Tribes Settlement Officer has, under Section 18 of the Act and under the Rules, power to discharge a member of a criminal tribe on probation, it cannot be supposed that if he cancels the order of probation, special orders of the Local Government for his return to the settlement are necessary.

13. The order of the Criminal Tribes Settlement Officer is stated by the Magistrate in his judgment to be dated July 30, 1926. This, however, is a mistake. The order itself is dated December 22, 1925, as is mentioned in Exhibit B, which is merely a statement by the Criminal Tribes Settlement Officer that such an order had been passed. The case will, therefore, be governed by the Rules which were in force in 1925, that is the Rules of July 22, 1924, in Government Resolution No. 1794-11 published in the Bombay Government Gazette of August 7, 1924, and not by the rules published on January 23, 1926.

14. I am of opinion that the Magistrate's order is correct and the rule should be, therefore, discharged.


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