H 3rd August 1907. REVISION SIDE. 20th June 1907. I submit the case to the Chief Court for order as no appeal lies against the conviction. The judgment of the Chief Court was delivered by ROBERTSON, J.-I am afraid I am unable to concur in the view taken by the learned Sessions Judge. I think Section 46 (1) (c) makes the introduction of any quantity of foreign spirits illegal, however small. The necessity or advisability of a prosecution in any particular case is another matter, but I think, after consulting a brother Judge on this point, that the offence has clearly been committed. In deference to the opinion of the local officers, while maintaining the conviction, I reduce the fine to one of Rs. 2-8 only. No. 15. Before Mr. Justice Johnstone and Mr. Justice Lal Chand. Versus KING EMPEROR,-RESPONDENT. Criminal Revision No. 562 of 1907. Entry on the roof of a building with a stick and sandheva-Attempt to commit house-breaking by night-Criminal trespass - Penal Code, Sections 442, 447, 457, 511. The accused, who had mounted upon the roof of the complainant's house armed with a stick and a sandheva, was convicted of an attempt at housebreaking by night under Sections of the Penal Code. Held, that he was not guilty of the offence charged as mere presence on the roof of the house co uld not be construed into an attempt to commit an offence under Section 511, but that he was guilty of criminal trespass punishable under Section 447 of the Penal Code. Alla Bakhsh v. Empress (') referred to. Petition for revision of the order of W. Chevis, Esquire, Sessions Jowala Parshad, for petitioner. This was a reference to a Division Bench made by Chatterji, J., to determine whether entry upon the roof of a house with stick and sandheva amounts to an attempt to commit housebreaking by night. The order of reference by the learned Judge was 88 CHATTERJI, J.-In this case the accused, was found on the roof, a stick had a struggle with him and jumped in to the yard of a neighbouring house. He dropped the stick and a sandheva or house-breaking implement in the course of the struggle. The accused has been convicted under Sections 457 and sen 511 tenced to two years' rigorous imprisonment. It is argued that there was only a preparation and not an attempt of house-breaking, and Alla Bakhsh v. The Empress (1) is quoted in support of the contention. I am somewhat doubtful whether that ruling is exactly applicable, but I refer the question to a Bench. Upon the reference to the Division Bench the following judgment was delivered by LAL CHAND, J.-The facts of this case are stated in the 6th August 1907. referring order. The question is whether on the facts found the petitioner was rightly convicted of an attempt at house-breaking. The matter is not entirely free from doubt, but on very similar facts the accused in Alla Bakhsh v. The Empress (1) was found to be guilty and convicted of mere criminal trespass. All that is proved in the present case is that the petitioner accused was found on the roof of the complainant armed with an imple. ment used for the purpose of committing burglary. There is no evidence to show that Le bad either commenced to dig a holo on the 100f for the purpose of effecting his entrance inside the 100m or had otherwise commenced any act for jumping or getting into any portion of the premises. Under the circumstances his mere presence on the roof of the house cannot be construed into an attempt to commit an offence under Section 511, Indian Penal Code. In order to apply Section 511, Indian Penal Code, it is necessary not merely that there should be au attempt to commit an offence, but iko wise that an act was done as such attempt towards the commission of the offence. Mere passing on the roof of the Louse cannot in any sense be termed an act towards the commission of the burglary. It is an act of approach towards the house for the purpose of stealthily effectug au entrance into the premises, but can hardly be said to exceed the limits of mere preparation. While on the roof the accused had yet time to make up his mind to recede or attempt an entrance according as he found his opportunity or the state of vigilance inside the premises. It cannot be said that by his presence on the roof of the house he had finally committed himself to committing the offence of house-breaking. We, therefore, hold that the petitiouer ought to have been convicted of mere (') 9 P. R. 1887, Cr, 511 criminal trespass uuder Section 447, Indian Penal Code, and not of an attempt to commit house-breaking under Sectious_457, and we alter the conviction accordingly. The accused has already undergone the maximum amount of imprisonment awardable under Section 447, Indian Penal Code. We, therefore, direct his immediate release from the jail. REVISION SIDE. 18th April 1907. No. 16. Before Mr. Justice Robertson. LACHHM N DAS,-PETITIONER, Versus KING EMPEROR,-RESPONDENT. Criminal Revision No. 97 of 1907. Fictitious deed of sule-Execution of, to avoid pre-emption-Dishonestly or Fraudulently-Penal Code, Section 423. Held, that the execution of a fictitious sale deed in order to defeat the claim of a pre-emptor amounts to a dishonest and fraudulent execution of a deed within the meaning of Section 423 of the Penal Code. Petition for revision of the order of Muulvi Inam Ali, Sessions Nanak Chand, for petitioner. Petman, for respondent. The judgment of the learned Judge was as follows: ROBERTSON, J.-This is an application for revision in a somen hat unusual case. The facts which are found and must be accepted are as follows: One Lachhman Das, a Sahukar Khatri, purchased certain land from one Sultan Bibi on 24th March 1900. Hearing the suits for pre-emption were pending, Lachhman, on 22nd March 1901, sold the land by registered deed to one Ismail, who had, or was, believed to have a right of pre-emption superior to that of the intending pre-emptors. A suit for pre-emption was actually commenced on 23rd April 1901 and in that Lachbmau pleaded the sale to Ismail. That suit failed for various causes, not being tried on the merits, and when Ismail sought mutation of the land in his name, Lachhman urged that the whole transaction of sale to Ismail was fictitious and eutered into solely to defeat the preemptor's claim. This is an application for revision, and 1 must deal with it on the basis that the sale by Lachhman to Ismail was in fact a fictitious sale, executed for the purposes of defeating a suit for pre-emption. It was, therefore, clearly fraudulent an dishonest and constituted an offence under Section 423, Indian Penal Code, for in the first place it is found as a fact that no consideration passed, although Rs. 300 was stated to have passed, and that it was not in fact intended for the benefit of the nominal purchaser Ismail. The general principles to be applied are laid down in Gurditta Mal v. The Emperor of India (1). No doubt such fraudulent transactions are frequently resorted to to defeat claims for pre-emption, and possibly it is not always realized that they render the perpetrators liable, as they do, to prosecution and punishment under Section 423, Indian Penal Code. A mere nominal punishment will not meet the case, but under the circumstances, I think, it will be sufficient to maintain the conviction, and the sentence will be reduced to one of Rs. 100 five or six weeks' rigorous imprisonment, the sentence of substantive imprisonment being reduced to the amount already undergone. The petitioner may be discharged from bail. No. 17. Before Mr. Justice Reid. HARNAM,-APPELLANT, Versus KING EMPEROR,-RESPONDENT. Criminal Appeal No. 291 of 1907. Criminal Procedure Code, 1898, Section 565—Applicability of to cases of attempts punishable under Section 511 of the Penal Code. Held, that Section 565 of the Code of Criminal Procedure, 1898, does not apply to persons convicted under Section 511 of the Penal Code. Appeal from the order of Q. Q. Henriques, Esquire, District The judgment of the Chief Court so far as is material for the purposes of this report was delivered by REID, J. · APPELLATE Side, 23rd July 1907. The order under Section 565 of the Code of Criminal Procedure is, however, illegal. The language of the first few lines of that section and of Section 75 of the Penal Code is practically identical and (1) 10 P. R. 1902, Cr the reason for which it has been invariably held that Section 75 does not apply to attempts equally preclude the application to them of Section 565. An attempt to commit an offence punishable under Section 457 of the Code is punishable under Section 511 not under Chapter XII or Chapter XVII of the Code. For these reasons I set aside the order under Section 565 of the Code of Criminal Procedure. To this extent only the appeal is allowed. No. 18. Appeal allowed.. REVISION SIDE. 25th Apri 1907. Before Mr. Justice Kensington. RAM SINGH,-PETITIONER, KING EMPEROR,-RESPONDENT. Criminal Revision No. 404 of 1907. Appellate Court-Jurisdiction of, to test the legality of a conviction passed against a youthful offender-Reformatory Schools Act, VIII of 1897, Section 16. Held, that Section 16 of the Reformatory Schools Act, VIII of 1897, does nct relieve an Appellate Court of the duty of finding whether a conviction or sentence passed against a youthful offender is legally maintainable. It only precludes a Court of appeal from altering or revising any order passed by the original Court with respect to the age of such offender or the substitution of an order for detention in a Reformatory School for transportation or imprisonment. Petition for revision of the order of F. T. Dixon, Esquire, The judgment of the learned Judge was as follows :— KENSINGTON, J.-The circumstances of this case are as follows :— The Magistrate by whom the petitioner was tried appears to have thought him guilty of an affence under Section 240, Indian Penal Code, but did not formally convict him under that or any other section. He merely referred the case to the District Magistrate under Act VIII of 1897, with reference apparently to Section 31 (4) of the Act. The District Magistrate treated the case as a reference under Section 9 (1) of the Act and sentenced the petitioner to a year's imprisonment without mentioning the section of the Indian Penal Code under which this sentence was awarded. He then dealt with the petitioner under the Reformatory Act. |