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In Re : Adur Desikachari and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1915)28MLJ307
AppellantIn Re : Adur Desikachari and ors.
Cases ReferredSrinivasa Ayyangar v. Queen Empress I.L.R.
Excerpt:
- - procedure provides only for appeals from orders to give security for good behaviour. procedure be committed to jail, the imprisonment for failure to give security for keeping the peace being simple and for failure to give security for good behaviour being rigorous......is whether they constitute a trial. it may be that if the definition, in section 4 (4) of the code of criminal procedure, of 'enquiry' be used as a test, such proceedings might fall within the scope of an enquiry rather than of a trial. but it is not to be supposed that when the letters patent were enacted in 1865 the definition after-wards embodied in the criminal procedure code of 1882 was in the mind of the legislature. in the code of 1861 the word ' enquiry ' was used only to denote proceedings preliminary to trial.7. there can be no doubt that proceedings under chapter viii are 'criminal cases' and can be transferred from one magistrate's file to another's (vide wazed alikhan v. emperor i.l.r. (1913) c. 719.8. for these reasons we consider that in the matter of ramasamy chetty.....
Judgment:
ORDER

1. A preliminary objection has been taken that no appeal lies in this case. In our opinion proceedings taken for binding over persons to keep the peace under Chapter VIII are criminal trials within the meaning of Section 15 of the Letters Patent, and if this is so, the section provides no appeal from the judgment of a single judge dealing with a Revision Petition presented against the order of a Magistrate under Section 118 of the Code of Crl. Procedure. In In the matter of Ramasamy Chetty I.L.R. (1908) M. 510 this was the view taken by the Officiating Chief Justice who gave several reasons for his opinion.

2. The learned Chief Justice was apparently mistaken in saying that an appeal was allowed against an order to give security for keeping the peace. Section 406 of the Code of Crl. Procedure provides only for appeals from orders to give security for good behaviour.

3. But the procedure prescribed by Section 117 of the Code of Crl. Procedure for conducting enquiries under Chapter VIII is that for conducting trials; and persons ordered to give security may under Section 123 of the Code of Crl. Procedure be committed to jail, the imprisonment for failure to give security for keeping the peace being simple and for failure to give security for good behaviour being rigorous. Imprisonment is a kind of punishment (vide Section 23 of the Indian Penal Code).

4. An order passed under Order 106 (3) by an appellate Court that persons convicted of offences involving a breach of the peace should execute bonds to keep the peace is treated in Section 423 (1)(b)(3) as an enhancement of sentence.

5. At the end of the enquiry, if it is found unnecessary to bind over the person proceeded against, he is to be ' released' or dis-charged according as he happens to be in custody or not at the time.

6. We have no doubt therefore that proceedings under this chapter are of a criminal nature. The next question is whether they constitute a trial. It may be that if the definition, in Section 4 (4) of the Code of Criminal Procedure, of 'enquiry' be used as a test, such proceedings might fall within the scope of an enquiry rather than of a trial. But it is not to be supposed that when the Letters Patent were enacted in 1865 the definition after-wards embodied in the Criminal Procedure Code of 1882 was in the mind of the legislature. In the Code of 1861 the word ' enquiry ' was used only to denote proceedings preliminary to trial.

7. There can be no doubt that proceedings under Chapter VIII are 'criminal cases' and can be transferred from one Magistrate's file to another's (vide Wazed Alikhan v. Emperor I.L.R. (1913) C. 719.

8. For these reasons we consider that In the matter of Ramasamy Chetty I.L.R. (1903) M. 510 was rightly decided.

9. Mr. Sydney Smith for the Public Prosecutor has also suggested another reason for holding that no appeal lies. Section 15 of the Madras Letters Patent falls within that part which begins at Section 11 dealing with civil jurisdiction. It cannot be understood by implication that an appeal lies in every case in which the right of appeal is not denied by this section. We must take it that rights of appeal do not exist unless expressly conferred by the legislature. The portion of the Act which commences at Section 22 and deals with criminal jurisdiction gives no right of appeal against the order of a single Judge acting as a Court of revision.

10. This was the view taken in Srinivasa Ayyangar v. Queen Empress I.L.R. (1893) M. 105 with which we agree.

11. We therefore dismiss this petition.


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