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Emperor Vs. Piru Rama Havaldar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 143 of 1925
Judge
Reported inAIR1926Bom64; (1925)27BOMLR1371
AppellantEmperor
RespondentPiru Rama Havaldar
DispositionApplication dismissed
Excerpt:
criminal procedure code (act v of 1898), section 35 - separate sentences-indian penal code (act xl v of 1860), sections 148, 326.;under the amended section 35 of the criminal procedure code, it is com-patent to a court to pans separate sentences for offences punishable under sections 148 and 326 of the indian penal code, provided the sentences so passed could be passed under any of the two sections, and provided they are not in excess of the powers of the court passing them. - - 2. it is contended that we should go into the facts contrary to the usual practice of this court in revision, but no adequate grounds appear for our following this exceptional course......have been convicted of offences under as. 14s and 326, indian penal code, by the assistant sessions judge of satara. appeals to the sessions judge were dismissed.2. it is contended that we should go into the facts contrary to the usual practice of this court in revision, but no adequate grounds appear for our following this exceptional course. the more fact that there was some delay in the prosecution of the accused and that the investigating police apparently formed a conclusion contrary to the truth of the prosecution case are not sufficient to lead us to suppose that there has been any miscarriage of justice both the assistant sessions judge and sessions judge have written careful judgments, considering all the evidence including these opinions of the police officers, and the.....
Judgment:

Fawcett, J.

1. In this case the petitioners have been convicted of offences under as. 14S and 326, Indian Penal Code, by the Assistant Sessions Judge of Satara. Appeals to the Sessions Judge were dismissed.

2. It is contended that we should go into the facts contrary to the usual practice of this Court in revision, but no adequate grounds appear for our following this exceptional course. The more fact that there was some delay in the prosecution of the accused and that the investigating police apparently formed a conclusion contrary to the truth of the prosecution case are not sufficient to lead us to suppose that there has been any miscarriage of justice Both the Assistant Sessions Judge and Sessions Judge have written careful judgments, considering all the evidence including these opinions of the Police officers, and the Sessions Judge acquitted one of the four accused who had been convicted by the Assistant Sessions Judge. In my opinion there is certainly no reason why we should apprehend that there has been any miscarriage of justice and consider the facts for ourselves.

3. The only legal point that has been raised is that there has been an error of law in passing separate sentences, (1) for an offence under Section 148 and (2) for an offence under Section 326 in the case of accused Nos, 2 and 3. They have been sentenced to one year's rigorous imprisonment each under Section 14&, Indian Penal Code, and to three and two years' rigorous imprisonment respectively under section 326, the sentences to run consecutively. It -was ruled by this Court in Queen Empress v. Bana Punjab I. L. R.(1892) 17 Bom. 260 that such separate sentences were quite legal. The subsequent Pull Bench case of Queen-Empress v. Malu Arjun I. L. R.(1899) 23 Bom. 706 1 Bom. L. R. 142 no doubt overrules this previous decision. But even under that ruling the passing of two separate sentences was held to be a mere irregularity, provided the aggregate of these did not exceed the punishment provided by law for any one of the offences, or the jurisdiction of the Court sentencing the offender, Section 35 of the Criminal Procedure Code has, however, now been amended, so as to restore the previous view of the law that such separate sentences are quite legal. For the word ' distinct' in Sub-section (1) of Section 35, and the explanation to Section 35, have been repealed; and the only qualification is that the separate sentences are subject to the provisions of Section 71, Indian Penal Code. This prevents the offender from being punished with a more severe punishment than the Court could inflict, or could have awarded, for any one of offences coining within the scope of that section. But that provision is not infringed in the present case. Our attention was called to the ruling of the Calcutta High Court in Keamuddi Karikar v. Emperor I. L. R.(1923) Cal. 79 but this appears to have been decided prior to the present alteration of Section 35 by Act XVIII of 1923; and in any case we are bound to follow the rulings of this Court in preference to those of the Calcutta High Court. The sentences do not seem excessive, having regard to the offences held proved against the petitioner. I would, therefore, dismiss the application.

Madgavkar, J.

4. I agree


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