1878 IN THE BAIDYANATH DASS, Convict. Reference. and coverings in which they are found, and the animals and in conveyances used carrying them, shall be liable to confiscation.' "Section 222 of the Code declares that the Magistrate of the MATTER OF District may try certain offences in a summary way, and among these offences are offences referred to in section 148 of this Code.' Such offences are described in the Code (section 4) as 'Summons cases.' Section 148 is to the following effect: When a complaint is made before a Magistrate having jurisdiction in the case, that any person has committed, or is suspected of having committed, any offence triable by such Magistrate and punishable with fine only, or with imprisonment for a period not exceeding six months, or with both, the Magistrate may issue his summons directed to such person, requiring him to appear at a certain time and place before such Magistrate to answer to the complaint.' So only offences punishable with fine only or im⚫prisonment for a period not exceeding six months, or with both,' would be triable in a summary way under the first clause of section 222, already quoted. "Is an offence under section 49, Act XXI, 1856, one punishable with fine only; or does the confiscation which follows on conviction form a part of the punishment so as to alter the character of the offence as regards the mode of trial to be adopted? "In two reported decisions of this Court (Khetter Mohun Chowrungi, 22 W. R., Cr., 43; Juddoo Nath Shaha, 23 W. R., Cr., 33) it has been held that such offences are not summons cases, and therefore are not triable in a summary way, because they are punishable with confiscation as well as with fine. We have great doubts regarding the correctness of those decisions- doubts which, we would add, are shared by the only Judge of this Court now present who was a party to one of those decisions. We are informed that Magistrates constantly try offences of this description summarily, probably in ignorance of the rule laid down in these decisions, and we therefore think it right to submit the matter to be authoritatively settled by a Full Bench of this Court. We are inclined to hold that such an offence can be tried summarily, as a 'summons case,' for the following reasons, which we state because the parties to this case 1878 IN THE MATTER OF BAIDYANATH DASS, Convict. are unrepresented, and therefore it is not probable that there will be any argument at the bar. "For the procedure in the trial of offences, the Code has divided. them into three classes-summons cases defined in section 148; warrant cases defined in section 149; sessions cases or trials in the Court of Session defined in section 4. If the offence under section 49, Act XXI, 1856, is not a summons case, it must be either a warrant case or a sessions case; and whatever opinion may be expressed regarding its falling under the category of summons cases, it clearly cannot fall within either of the two other classes. No special mode of trial has been prescribed for such an offence, and it is difficult to suppose that such cases were overlooked by the Legislature. The proper solution of this difficulty seems to be to regard confiscation not as a punishment contemplated by the Code of Procedure so as to affect the mode of trial. It may be said that a sentence is the declaration of the punishment imposed. Section 20 of the Code of Criminal Procedure sets forth the powers of Magistrates in passing sentence, and these powers are limited to imprisonment, fine, and whipping. It is in consideration only of such punishments that the Code has prescribed the different modes of trial; and, though confiscation of certain articles may be awarded on conviction of any offence under a special or revenue law, such confiscation is not taken into account by the Code so as to form a portion of the sentence or to affect the nature of the offence or the mode of trial. Further, we observe that section 8 of the Code in providing for the trial of offences under local or special laws states that no Court shall award any sentence in excess of its powers;' and 'the powers of Magistrates in respect to passing sentences on persons convicted' are set forth in section 20, which, as already stated, only refers to three kinds of punishments-imprisonment, fine, and whipping. Confiscation under Act XXI, 1856, and also under the Salt Act, can, however, be ordered by a Magistrate. Under these circumstances, we are inclined to hold that confiscation is no part of the sentence or punishment under the Code of Criminal Procedure, but that it follows as a consequence of the conviction. "The question referred is that stated in the first paragraph of this reference. If the answer to the question be in the affirmative, the conviction will stand. If the answer be in the negative, the conviction and sentence, including the order of confiscation, will be set aside, and a new trial ordered." - The judgment of the Full Bench (1) is as follows: We are clearly of opinion that an offence under Section 49, Act XXI, 1856, can be tried summarily by a Magistrate under section 222 of the Criminal Procedure Code. The confiscation, which is provided for by section 49, is merely a consequence of the conviction, and does not form part of the punishment for the offence. We observe that in the case of Khetter Mohun Chowrungi, 22 W. R., 43, to which we are referred, the question which we are called upon to decide was given up by the Government Pleader without argument, and that, in the second case, the learned Judges merely followed the ruling in the first. So that this would appear to be the first occasion on which the point has been seriously considered. (1) GARTH, C.J., KEMP, JACKSON, MARKBY and AINSLIE, J.J. 1878 IN THE BAIDYANATH Convict. A mortgagee who elects to take a money-decree, and becomes himself the purchaser of the property mortgaged at a sale in execution of that decree cannot bring a suit to enforce his lien against a person who purchased the right, title, and interest of the same debtor in the same property, at a prior sale in execution of a prior money-decree. SPECIAL APPEAL from a decree passed by the Judge of Midnapore, reversing that of the Subordinate Judge of that This suit was brought against two parties, Sreemutty Dassi Moni Dassi and Narendro Nath Mytee, under the following circumstances: On the 26th of August 1868, the late father of the second defendant borrowed money from the late husband of the first defendant, under a simple money bond. On the 10th of January 1869, the same person borrowed money from the plaintiff by a specially registered mortgage bond which hypothecated two estates for the payment of the loan. On the 22nd of February 1871, plaintiff obtained a simple money-decree on this specially registered mortgage bond. On the 24th of February 1871, the other creditor, the husband of the first defendant, in execution of a decree previously obtained by him for his debt, bought at auction, for Rs. 45, the right, title, and interest of his debtor in one of the properties which had been mortgaged to the plaintiff. Subsequently, the plaintiff took out execution of his money-decree, and, on the 30th of June 1871, his debtor's right, title, and interest in the same property was again put up to sale, and was bought in by the plaintiff himself. Plaintiff brought the present suit to have it declared that the first defendant holds the property subject to his mortgage, alleging 1878 be that the sale caused by himself in June 1871 was a nullity, inasmuch as the debtor had previously ceased to have any right, title SREEMUTTY or interest in the property then put up for sale. DASSI MONI v. CHOWDHRY MULLICK, The lower Court dismissed the suit on the ground that the plaintiff's lien was gone, he having sold the mortgaged property JONMAJOY for the satisfaction of his debt. This decision was reversed on appeal. The first defendant specially appealed. Baboo Srinath Dass and Baboo Bhowany Churn Dutt, for the Appellant, contended that the judgment of the Court of First Instance was correct; also, that the suit was barred under Act VIII of 1859, section 7. Baboo Mohiny Mohun Roy and Baboo Rash Behary Ghose, for the Respondent. The judgment of the Court (1) was delivered by KENNEDY, J. :— The plaintiff originally had a simple mortgage bond charging the lands in question in this suit with others, and specially registered under the provisions of the Registration Act. The lands having been attached by some other creditors, the plaintiff, two days before the day for sale under that attachment, obtained a summary decree under the provisions of the Registration Act. It is difficult to believe that he was not aware of the immediate proximity of the sale, or that the course he took was not adopted in reference to that fact. The first defendant purchased at the sale under that attachment; and the plaintiff having subsequently sold the right, title, and interest of the mortgagor in the mortgaged land, under an attachment issued upon his summary decree, and himself purchased it, he was unable, he says, to reap the fruits of his purchase in consequence of the antecedent sale to the first defendant. The present suit is brought against the mortgagor and the first auction-purchaser to enforce the lien created by the mortgage bond against these lands. The difficulty in which the plaintiff has been placed is entirely one of his own creation. Instead of suing the mortgagor on his (1) JACKSON and KENNEDY, J.J. Judgment. KENNEDY, J. |