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Emperor Vs. Bai Dhankor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 368 of 1936
Judge
Reported inAIR1937Bom148; (1937)39BOMLR74
AppellantEmperor
RespondentBai Dhankor
DispositionAppeal dismissed
Excerpt:
.....the appeal should not be dismissed summarily but should be directed to stand over, and at the same time notice should be served on government under the revisional powers conferred by section 439 of the criminal procedure code to show cause why the sentence should not be reduced. at the same time the record should be sent for. the notice and the appeal should then be heard on the same day. if, after hearing the government pleader, the high court comes to the conclusion that the sentence ought to be reduced, the court can reduce it under the revisional powers. thereafter, the court can say that it has no ground for interfering with the conviction or sentence and can dismiss the appeal summarily under section 421 of the code.;emperor v. dahu raut (1935) 37 bom. l.r. 557, p. c. explained. - ..........it should not be dismissed summarily, but should be directed to stand over, and at the same time notice should be served on government under the revisional powers conferred upon the court by section 439 to show cause why the sentence should not be reduced. at the same time it will be convenient to send for the record. the notice and the appeal will then be heard on the same day. if, after hearing the government pleader, the court comes to the conclusion that the sentence ought to be reduced it can be reduced under the revisional powers. having reduced the sentence the court can,' then, if so minded, say that it sees no ground for interfering with the conviction or sentence, and can dismiss the appeal summarily under section 421, criminal procedure code.3. that course we have.....
Judgment:

John Beaumont, Kt., C.J.

1. This appeal came before the Court as an appeal from jail. On perusing the judgment we thought that the conviction was clearly right on the merits, but that there was ground for thinking that the sentence was rather too severe. It was formerly the practice of this Court, in such cases, to mark the appeal as admitted as to sentence, which meant in effect that the appeal was dismissed on the merits but notice issued to the Crown to show cause why the sentence should not be reduced. That practice seems to have prevailed in the High Court of Calcutta with this variation that that Court did not always give notice to the Crown. In a recent case, Emperor v. Dahu Raut : (1935)37BOMLR557 . which was an appeal from the High Court of Calcutta, this practice was challenged before the Privy Council, and the Privy Council held that the practice was not in accordance with the Code; that the High Court can dismiss the appeal summarily under Section 421, Criminal Procedure Code, if it sees no sufficient ground for interfering; but unless it adopts that course the Court is bound to issue notices under the succeeding sections; and that where the appeal is against both the conviction and sentence the appeal cannot be partially dismissed and notice issued as to the remainder. The practice which prevailed was undoubtedly a convenient one, because it not infrequently happens that the Court is satisfied that there is no ground on which the conviction ought to be disturbed, but at the same time thinks that the sentence does require further consideration. Having regard to the Privy Council decision we are faced with the dilemma of either allowing a sentence, of which we disapprove, to stand, or else of incurring a considerable waste of public time and money in issuing notices to persons whom we do not desire to hear; and in this Presidency where the High Court has heavy arrears of work, and Government suffers from chronic financial stringency, it is peculiarly desirable to avoid any waste of judicial time or public money. In our opinion, however, the difficulty can be overcome by reducing the sentence under our revisional powers, before we deal with the appeal.

2. In such cases, the correct procedure, we think, is that when the appeal first comes on for hearing it should not be dismissed summarily, but should be directed to stand over, and at the same time notice should be served on Government under the revisional powers conferred upon the Court by Section 439 to show cause why the sentence should not be reduced. At the same time it will be convenient to send for the record. The notice and the appeal will then be heard on the same day. If, after hearing the Government Pleader, the Court comes to the conclusion that the sentence ought to be reduced it can be reduced under the revisional powers. Having reduced the sentence the Court can,' then, if so minded, say that it sees no ground for interfering with the conviction or sentence, and can dismiss the appeal summarily under Section 421, Criminal Procedure Code.

3. That course we have adopted in this case. We have heard the Government Pleader as to the sentence, and we think that it was rather too severe. The accused was convicted under Section 366A. She was the mother of the girl who had been kidnapped. There is no doubt, we think, that the mother was guilty of the offence charged, but the sentence of three years' rigorous imprisonment was rather too severe, and we reduce that sentence to one of one year under our revisional power. The sentence now being one to which there is no objection, and being satisfied that there is nothing to be said against the conviction on the merits, we dismiss the appeal summarily.


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