ALFRED LAIRD Vs. KING-EMPEROR

JUDGEMENT

(1.) This is a Rule calling upon the Chief Presidency Magistrate to show cause why the order made by him sentencing the petitioner, Alfred Laird, to seven days simple imprisonment under Section 103(4) of the Indian Merchants Shipping Act 11 of 1923, should not be set aside on the first and second grounds specified in the petition. These grounds are; first, that the petitioner had already been convicted upon the same facts, and consequently his subsequent trial and conviction was bad in law; and secondly, that the conviction of the petitioner under two different enactments for the same act was illegal.

(2.) There is no dispute about the facts. The petitioner was the Third Officer of the steamship "City of Newcastle" and he was sent up on the 26 April 1926 upon a charge of having assaulted the Captain of the ship, Daniel Jenkins. According to the evidence the petitioner was drunk and used abusive language and assaulted the Captain with the result that the Captain was somewhat seriously injured and had to call in the police. A Sergeant of Police came on board the ship, the occurrence having taken place in the Captain's cabin and took the accused ashore. He was placed before an Honorary Magistrate charged with an offence under Section 68 of the Calcutta Police Act. In para. 6 of the form the offence complained of is stated to be drunk and disorderly conduct by creating a disturbance by assaulting the Captain of the vessel "City of Newcastle" at No. 2 Berth, kidderpore Docks, on the 25 April, 1926, and the section given was Section 68 of the Calcutta Police Act. In the 7th paragraph the plea of the accused was recorded in these words : "Admits asault."

(3.) Thereupon the learned Honorary Magistrate, Dr. Sarbadhikari, made the final order fining the accused Rs. 20 or in default seven days rigorous imprisonment. Thereafter, on the 28th April, the Captain filed a second complaint under Section 103(4) of the Indian Merchants Shipping Act. This case was heard by Mr. Roxburgh, the Chief Presidency Magistrate, who, on the 10 of May sentenced the petitioner to seven days simple imprisonment. The defence set up by the petitioner before Mr. Roxburgh was that he had already been convicted and fined Rs. 20. The learned Magistrate state? that the fact that the petitioner had already been fined under the Calcutta Police Act was immaterial, and goes on to say: What happened evidently was that the police arrested the accused on the letter of the Captain and than had to justify this by putting up a cognizable case. They sent the accused up then on a challan for drunken and disorderly conduct by creating a disturbance by assaulting the Captain of the vessel City of Newcastle at No. 2 Berth, Kidderpore Docks, on 25 April 1926. But the Captain's letter which was sent up with the challan shows that the assault was in his cabin. If the Magistrate had bothered to read this and to give the matter a moment's thought, he would have seen that whatever the accused might plead, he ought never to have been called on to answer a charge under Section 68 (Act IV of 1866) street appliee to anyone found drunk etc., in any which or thoroughfare or in any place of public amusement or.... It is thus clear that the conviction under Section 68 of the Police Act is illeged and the accused can get it set aside if he thinks fit. But in my opinion it does not in any way bar the present proceedings under Section 403, Criminal P.C., or Section 26 of the General Clauses Act.