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Nandu and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1919All44; 52Ind.Cas.668
AppellantNandu and ors.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 188 - offence committed in native state--trial in british india, when permissible--certificate of political agent, whether necessary. - - objection was taken at the hearing of the case that gambling was not shown to be an offence in the native state in question, and secondly, that the requirements of the proviso to section 188 of the code of criminal procedure had not been satisfied. ' an agreement like this cannot take the place of a certificate or sanction which is contemplated by the section aforesaid......offences under section 13 of act iii of 1867, alleged to have been committed in kampta, which is a native state. objection was taken at the hearing of the case that gambling was not shown to be an offence in the native state in question, and secondly, that the requirements of the proviso to section 188 of the code of criminal procedure had not been satisfied. that proviso sets out that 'when a native indian subject of his majesty commits an offence in the territories of any native prince or chief in india, he may be dealt with in respect of such offence an if it had been committed at any place within british india at which he may be found provided that no charge as to any such offence shall be enquired into in british india, unless the political agent, if there is one in the territory in.....
Judgment:

Wallach, J.

1. The applicants have been sentenced to fines of Rs. 20 and in default to three weeks' rigorous imprisonment for offences under Section 13 of Act III of 1867, alleged to have been committed in Kampta, which is a Native State. Objection was taken at the hearing of the case that gambling was not shown to be an offence in the Native State in question, and secondly, that the requirements of the proviso to Section 188 of the Code of Criminal Procedure had not been satisfied. That proviso sets out that 'when a native Indian subject of His Majesty commits an offence in the territories of any Native Prince or Chief in India, he may be dealt with in respect of such offence an if it had been committed at any place within British India at which he may be found Provided that no charge as to any such offence shall be enquired into in British India, unless the Political Agent, if there is one in the territory in which the offence is alleged to have been committed, certifies that in his opinion the charge ought to be enquired into in British India and where there is no Political Agent, the sanction of the Local Government shall be required.' The learned Magistrate has dealt in a light and airy fashion with these legal objections. Even if the applicants could be convicted of an offence of Rambling in the Native State in question, they cannot be proceeded against in the absence of the certificate or the sanction set out in the proviso to Section 188 of the Code of Criminal Procedure. The Magistrate who tried the case pays: 'A few months ago under the instructions of the Political Agent a committee was constituted of some members of the Native State concerned and some members of the executive authorities in British India and it was mutually agreed for convenience that British India Police might arrest persons found gambling in the Native State and try them in British India if they are British India subjects and send them to the Native State if they are subjects thereof, and rice versa the Native State Police could arrest per-sins found gambling in British India.' An agreement like this cannot take the place of a certificate or sanction which is contemplated by the section aforesaid. Where there is a bar to the prosecution of a person unless certain formalities are carried out, those formalities have to be strictly carried out. I hold, therefore, that there was no jurisdiction to try the applicants at Banda, and I, therefore, set aside the conviction and sentence and direct that the fines, if paid, be refunded.


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