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In Re: Petition of Pandya Nayak - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad436
AppellantIn Re: Petition of Pandya Nayak
Cases ReferredKamakshi Bhayi v. East India Company.
Excerpt:
criminal procedure code, sections 87, 88 - penal code, section 176--omission to give information to police--proclamation of offender--proof--omnia presumuntur rite esse acta--application of maxim. - - 12. it is clear then that it was not in consequence of the zamindar's failure to report that vellayan was in and about his palace precincts, that this man vellayan was not arrested, and that the police were in fact aware of where vellayan was. but i am satisfied that the principle enunciated by the calcutta high court, as that to be kept in view in dealing with cases of this sort, is sound and in accordance with the intention of the legislature on the subject, and that it was unreasonable on the facts found and admitted in this case to convict the appellant of an offence under section..........session court on the grounds that there is no evidence that any proclamation was published in the manner required in section 87, [438] or indeed that any proclamation was issued under that section at all: and that the courts below were wrong in presuming, for the reasons stated by them, that such proclamation must have been not only published, but also duly published.6. reference is also made to empress v. sashi bhusan chuckrabutty i.l.r. 4 cal. 623.7. i am of opinion that these objections must prevail.8. most of the cases in which the maxim of law on which the lower courts have acted has been adopted will be found to be cases in which the question was as to jurisdiction, and the jurisdiction being proved, the presumption has been made, e. g., in taylor v. clemson 11 cl. & f. 610 'where.....
Judgment:

Brandt, J.

1. The petitioner, Kannaya Raja Pandya Nayak, a zamindar, was convicted by the First-class Joint Magistrate, Madura District, of having intentionally omitted to furnish to a public servant, as such, certain information which he was legally bound to furnish, an offence punishable under Section 176, Indian Penal Code.

2. The information that the zamindar was, as it is found, bound to furnish was the resort to a village, in which the zamindar owns land, of one Vellayan who has been found to have been 'a proclaimed offender,' this information being required by Section 45, Criminal Procedure Code, to be given by the owner or occupier of land, and the zamindar as such owner being under a legal obligation to furnish such information to the police.

3. It is contended for the petitioner that it was not proved that Vellayan was a proclaimed offender within the meaning of the words used in the section of the Criminal Procedure Code above quoted.

4. Both the Magistrate in the first instance and the Session Judge on appeal have held that Vellayan was a proclaimed offender, because it was proved that property belonging to Vellayan was attached and sold under the provisions of Section 88, Criminal Procedure Code, and that section allows such attachment and sale only after issuing a proclamation under the preceding section : and that it is to be presumed, therefore, that the requirements of Section 87 had been duly observed and proclamation published in the manner provided in that section.

5. Application is made to this Court to set aside the order of the Session Court on the grounds that there is no evidence that any proclamation was published in the manner required in Section 87, [438] or indeed that any proclamation was issued under that section at all: and that the Courts below were wrong in presuming, for the reasons stated by them, that such proclamation must have been not only published, but also duly published.

6. Reference is also made to Empress v. Sashi Bhusan Chuckrabutty I.L.R. 4 Cal. 623.

7. I am of opinion that these objections must prevail.

8. Most of the cases in which the maxim of law on which the Lower Courts have acted has been adopted will be found to be cases in which the question was as to jurisdiction, and the jurisdiction being proved, the presumption has been made, e. g., in Taylor v. Clemson 11 Cl. & F. 610 'where it appears on the face of the proceedings that the inferior Court has jurisdiction it will be intended that the proceedings are regular; but....if this does not so appear or is left in doubt no such intendment will be made.' 'The maxim in fact applies only to regularity in form, and will not supersede the necessity of furnishing proof that a material act was performed where that act goes to the basis of a justification.' Kamakshi Bhayi v. East India Company. (Madras Supreme Court, 1854 (Norton's Law of Evidence, ed. V., para. 685).

9. And in the present case it would have been easy to prove, and it was on the prosecution to prove, that proclamation was made (if this was so) in the manner required by Section 87 : but this by itself would probably not have been sufficient unless it had been shown that the proclamation was published in such place and such manner that the zamindar had, or that it must have been presumed that he had, notice of it :but as a matter of fact the proper place for proclamation need not at all necessarily have been the village in which the zamindar resided. But there is another ground on which in my opinion the appellant was entitled to acquittal, viz., that, as the learned Judges point out in the Calcutta case above cited, these provisions of law ought not to be worked solely or principally for the purpose of vexation, but for the purpose of insuring that information be not intentionally withheld by those whose position renders them liable to give it: and that 'it is not reasonable that every person' other than him or those from whom such information has been actually obtained, 'who may possibly be bound to give such information should be prosecuted for not having done so.'

10. In the present case the Court of First Instance had no doubt apparently that the charges made against the zamindar were the result of spite and a wish for revenge against him on the part of the real complainant Shanmugam Chetti: the zamindar had, it appears, been convicted of having caused this Chetti to be robbed, principally with a view to insulting and disgracing him, and a warrant was out against Vellayan for having been concerned in this attack.

11. From the evidence of Shanmugam himself it appears that after expiry of the sentence passed on the persons who had been arrested, convicted, and imprisoned for the said attack on him, he, Shanmugam, frequently saw Vellayan openly in attendance on the zamindar and that, as he says, he four times informed the police of this, and asked them to arrest Vellayan, but they refused or gave excuses for not doing so.

12. It is clear then that it was not in consequence of the zamindar's failure to report that Vellayan was in and about his palace precincts, that this man Vellayan was not arrested, and that the police were in fact aware of where Vellayan was.

13. The zamindar was moreover tried on two other charges besides that on which he has been convicted, those other charges relating to offences much more serious than the third; viz., offences under Sections 212 and 216 of the Indian Penal Code : on those charges he was acquitted; and it is evident that the omission to report was made the basis of the third charge, not because it related to a different set of circumstances, but in order to secure a conviction, if possible, in the event of the more serious charges failing.

14. The objection taken here, viz., that the omission to report the whereabouts of Vellayan did not arise from a wish to keep secret the fact of his being in and about the palace, but from the zamindar's knowing that the police knew where Vellayan was, was taken before the Divisional Magistrate, but the latter held 'if the fact of the resort and condition of the person to be reported are established, the onus of disproving the obligation to report rests upon the accused.'

15. For the reasons above stated I must hold that the appellant ought not to have been convicted. I would, had -I thought the conviction could be sustained, have directed further evidence to he taken as to whether or not the proclamation required by Section 87, Criminal Procedure Code, had been published and published in the manner required by that section, and if so whether it must be presumed, if not actually proved, that the appellant was aware of such proclamation; but I am satisfied that the principle enunciated by the Calcutta High Court, as that to be kept in view in dealing with cases of this sort, is sound and in accordance with the intention of the Legislature on the subject, and that it was unreasonable on the facts found and admitted in this case to convict the appellant of an offence under Section 176, Indian Penal Code.

16. I do accordingly reverse the findings of the Lower Courts, and the sentence passed by the Magistrate and confirmed by the Session Judge and acquit the appellant and direct that the fine imposed, if levied, be refunded.


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