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Superintendent and Remembrancer of Legal Affairs Vs. HosseIn Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1938Cal439
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentHosseIn Ali and anr.
Excerpt:
- .....for one year and six months each and awarded no separate sentence under section 498. in appeal the learned sessions judge found the two accused men not guilty under section 363, but guilty under section 498. he upheld the conviction under section 498, but felt that he had no authority to pass a proper sentence as the magistrate had not passed any sentence under that section.2. in our opinion the learned sessions judge had jurisdiction to pass appropriate sentence under section 498 subject to the limit of one year and six months which the magistrate had imposed. under section 423 (b) in an appeal from conviction the appellate court may alter the finding maintaining the sentence or with or without altering the finding reduce the sentence. in this case what the learned sessions judge did.....
Judgment:

M.C. Ghose, J.

1. The two accused men in this case were tried by a Magistrate who convicted them under Sections 363 and 498, I. P. C, and sentenced them under Section 363 to rigorous imprisonment for one year and six months each and awarded no separate sentence under Section 498. In appeal the learned Sessions Judge found the two accused men not guilty under Section 363, but guilty under Section 498. He upheld the conviction under Section 498, but felt that he had no authority to pass a proper sentence as the Magistrate had not passed any sentence under that section.

2. In our opinion the learned Sessions Judge had jurisdiction to pass appropriate sentence under Section 498 subject to the limit of one year and six months which the Magistrate had imposed. Under Section 423 (b) in an appeal from conviction the Appellate Court may alter the finding maintaining the sentence or with or without altering the finding reduce the sentence. In this case what the learned Sessions Judge did was to alter the conviction from Sections 363 and 498 to a conviction under Section 498 only. In such a case he could have maintained the sentence of one and a half years which had been passed by the Magistrate or given a reduced sentence. 'We sentence the two accused men under Section 498 to rigorous imprisonment for one year each. They will surrender to their bail to serve out the sentence now imposed upon them.

Bartley, J.

3. I agree.


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