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Emperor Vs. Intizar Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.475
AppellantEmperor
Respondentintizar Ali Khan
Excerpt:
criminal procedure code (act v of 1898), section 438 - reference--enhancement of sentence--reference cannot be made without trial of appeal. - - 1. the order passed by the learned sessions judge was passed clearly under a misconception. in this he was clearly wrong. only if he was satisfied as to the propriety of the conviction should a reference have been made under section 438. the learned' sessions judge did not in fact try the appeal......conviction of offences punishable under sections 147, 323 and 225 of the indian penal code. the learned sessions judge instead of hearing the appeal was of opinion that the sentence of simple imprisonment was not adequate, if the appellants were really guilty of the offence of which they had been found guilty by the court below and thereupon he referred the case to the high court purporting to act under the provisions of section 438 of the code of criminal procedure. in this he was clearly wrong. he ought to have heard the appeal and come to a determination as to whether or not the conviction of the appellants was justified. only if he was satisfied as to the propriety of the conviction should a reference have been made under section 438. the learned' sessions judge did not in fact.....
Judgment:

John Stanley, C.J.

1. The order passed by the learned Sessions Judge was passed clearly under a misconception. The accused appealed against their conviction of offences punishable under Sections 147, 323 and 225 of the Indian Penal Code. The learned Sessions Judge instead of hearing the appeal was of opinion that the sentence of simple imprisonment was not adequate, if the appellants were really guilty of the offence of which they had been found guilty by the Court below and thereupon he referred the case to the High Court purporting to act under the provisions of Section 438 of the Code of Criminal Procedure. In this he was clearly wrong. He ought to have heard the appeal and come to a determination as to whether or not the conviction of the appellants was justified. Only if he was satisfied as to the propriety of the conviction should a reference have been made under Section 438. The learned' Sessions Judge did not in fact try the appeal. I therefore, make no order on this reference but send back the record to the Court of the Sessions Judge with directions that the appeals be heard and disposed of according to law.


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