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Colonial Cases

R. v. Nowrojee, 1861

[criminal procedure]

R. v. Nowrojee

Supreme Court, India
1861
Source: The Times of India, 29 July 1861

 

[One column very heavily inked/smudged.]

...

   Me. Scoble contended that the Court had not the power to inflict a fine in a case of this nature, for the mere purpose of reimbursing the costs of the prosecution.

   Sir M. Sausse. (who was sitting in Court for the trial of Plea side causes) remarked that Act 9 of Geo. IV. empowered the Court to give costs for a prosecution.

   Mr. Scoble. - Not in a case of misdemeanour.

   Sir M. Sausse. - The Court has clearly the power to inflict a fine, and to give it as costs for a prosecution.

   Mr. Scoble. - I have not been able to discover such power in any statute.  The fine must go top the general fund, and out of it costs may be paid by order of the Court.  I submit, however, that this is not a case in which your Lordship should proceed in such a manner.

   The Court here directed the learned Counsel's attention to Section 52, Act 9 of Geo. IV, chap. 74, which says:-

Each of the said Supreme Courts (of Calcutta, Madras, and Bombay) may apply towards the reasonable costs of prosecuting offences, or of compensating prosecutions, any part of the whole sum arising out of fines levied by or transmitted to the said Court.

   Mr. Scoble observed that the Court could punish by fine or imprisonment, or both, but that the practice in English courts was that the object of a prosecution for common nuisances being the removal of the nuisance, such object could be gained by fine, but that corporal punishment was not necessary.  The nuisance in this case had been removed, and the counsel for the prosecution now asked for costs.  By the common statute the Court could not inflect any other punishment but fine.  The ground, however, which defendant was charged with obstructing was no part of a thoroughfare; it was only a private passage, and the Municipal Commissioners had so decided by refusing to interfere in the matter.  The defendant came into possession of the ground by purchase, and the title deed gave him the space on which he had built.

   Mr. Anstey. - This is impeaching the verdict of the jury.  My learned friend may make a motion for a new trial, but he cannot reopen the case now.

   Mr. Scoble. - The Chief Justice has not heard the evidence in the case, and I have a right to explain under what circumstances the defendant was prosecuted.

   Sir Joseph Arnould. - I am perfectly satisfied with the verdict of the jury.

   Sir M. Sausse. - I am not taking any part in the case; I brought to brother Arnould's notice the statute referred to.

   Mr. Scoble proceeded to say that defendant had not acted maliciously in the matter, as he thought he had a right to the ground.  The Municipal Commissioners decreed they had no jurisdiction in this matter, for the ground built upon was not a public passage.  This was not a case of a man wilfully interfering with a public right of way; the deeds which were produced give defendant a title to the ground; and under all the circumstances considered, the learned counsel submitted this was a man who supposed he was acting bona fide in taking possession of the ground.

   The prosecution had obtained sufficient damages, and defendant had already been punished by the heavy expenses he has had to incur.  According to the practice of English courts, no fine in the nature of costs is sanctioned; and though the 52nd section gave the Court a power to compensate a prosecutor, the learned counsel hoped the Court would relieve defendant of any further punishment.

   Sir Joseph Arnould. - That section of Act 9 of Geo. IV gives the Court powers to award costs out of the fine.  What is your application, Mr. Anstey - to pay the costs out of the general fine fund?

   Mr. Anstey. - The fine fund, I understand, my Lord, is not sufficient at present, and it would be perfectly useless to apply for any contribution from it.  I was asking the Court to impose a fine equal in amount to the prosecutor's expenses.  Dr. Dallas, the attorney for the prosecutor, had agreed with Mr. Cleveland, defendant's solicitor, that the prosecutor's expenses shall not exceed rupees one thousand; and it would not be unfair if defendant were fined in that sum.  He built in disobedience of the orders of the Municipal Commissioners,; and on his refusing to take advantage of the four days' grace given him by Dr. Reid, who desired him to abate the nuisance, a judgment was given against him for full damages.  Under these circumstances it would not do to put the fine into the treasury and pay it our again; and the fund was not sufficient.  That was my object in asking the court to impose a fine upon this contumacious defendant.  Avoiding any vindictive feelings, however, I am instructed not to press hard upon him.

   Sir Joseph Arnould. - Entirely concurring in the verdict of the jury, I fine the defendant Rs. 500, and it is ordered that the prosecutor have Rupees 500 out of the fine fund for his costs and the expenses of the prosecution.

   Mr. Anstey. - There is a doubt expressed, my Lord, as to who will receive the fine.

   Sir M. Sausse. - Of course the Sheriff, as the Court's officer.

   Clerk of the Crown (to the Crier) - proclaim the Sessions dissolved.

   Mr. Scoble (interrupting) - Stop, Mr. Hastings.  (To his Lordship) Will you discharge the defendant?

   Sir Joseph Arnould. - He is to be discharged on payment of the fine.

   Mr. Anstey. - There is a whisper that the fine should go to the Coroner! My learned friend's anxiety for the discharge of his client, before it is settled who is to receive the fine, looks suspicious.

   Mr. Scoble. - I beg my learned friend's pardon - he has no reason for suspecting anything.  If the Sessions had been dissolved before defendant was discharged, he could not have been discharged for two months hence.  Perhaps my learned friend would like to have him under his thumb for that period!

   Defendant, Nowrojee, fined five hundred rupees.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School