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Sham Lal Khettry Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1932Cal655
AppellantSham Lal Khettry
RespondentEmperor
Cases ReferredYacoob v. Adamson
Excerpt:
- .....that he should take appropriate steps to call the attention of other presidency magistrates to it. in the circumstances however which we have set out, we do not think that the omission of the presidency magistrate to record his reasons has in fact occasioned any failure of justice. we therefore think that the case is one to which section 537, criminal p. c., is applicable and we discharge the rule. rule 113 has been issued purely on the ground of sentence, and having regard to the circumstances of the case, we make the following alteration in the sentence. we direct that the sentence of three months' rigorous imprisonment imposed in this case should run concurrently with the sentence of two months rigorous imprisonment which we have upheld in rule 74. the petitioner who is on bail.....
Judgment:

Panckridge, J.

1. Rule 74 has been obtained by the petitioner who has been convicted by the learned Additional Chief Presidency Magistrate, Calcutta, under Section 54-A, Calcutta Police Act and sentenced to a term of rigorous imprisonment for two months. The ground on which the Rule was issued is that the learned Magistrate has not given any reason for the conviction of the accused. Mr. Khundkar who appears to show cause, admits that the procedure to be followed by the learned Presidency Magistrate is that laid down in Section 370, Criminal P. C. The relevant part of the section having regard to the language of the ground on which the Rule was issued is Sub-section (i), which is as follows:

In all cases in which the Magistrate inflicts imprisonment, or fine exceeding two hundred rupees, or both, his judgment shall contain a brief statement of the reasons for the conviction.

2. In this case the learned Presidency Magistrate has recorded the evidence adduced before him at some length and has also recorded the statements of the two accused persons, one of whom is the petitioner here. The record of the learned Magistrate however ends as follows:

Case proved against both accused under Section 544-A, Act 4 of 1866; both accused sentenced to two months' rigorous imprisonment under that section. Property to malikana.

3. In our opinion this is not a compliance with Section 370, Criminal P. C., and we consider that the section requires that the record kept by the Presidency Magistrate should furnish some indication that he has considered the evidence in a critical fashion and has satisfied himself that he is justified in disregarding the arguments put forward by the defence, We do not think that merely recording evidence and saying that the case is proved, fulfil the requirements which we have laid down. Having come to the conclusion that the provisions of the law have in this case been overlooked, we must consider whether we should set aside the conviction and sentence and acquit the accused or order a retrial or discharge the Rule, having regard to Section 537, Criminal P. C. The learned advocate for the petitioner has drawn our attention to the case of Yacoob v. Adamson [1886] 13 Cal. 272. In that case the Presidency Magistrate had similarly failed to record his reasons and the question arose whether this omission was curable under Section 537. The High Court declined to apply Section 537 and set aside the conviction and sentence. However when the facts of that case are examined it is clear that there was no evidence worthy of the name against the petitioner who had been arrested at an early stage and discharged by the police. He was afterwards re-arrested and convicted by the Additional Presidency Magistrate, although in the interval between discharge by the police and his re-arrest nothing further had been discovered against him. The circumstances of that case differ widely from those of the case with we are now dealing. There was a strong case in our opinion against the two accused who were arrested in possession of the property for which they could not render a satisfactory account. We do not think that the evidence of the prosecution witnesses was in any way shaken in cross-examination; and in our opinion the Magistrate was perfectly justified in accepting the prosecution evidence and holding that the case was proved, though he unfortunately omitted to do what the law requires and give a brief statement of reasons for so holding. We are informed that it is the common practice of Presidency Magistrates to dispose of cases in this way. If this is so, we think that the practice should be discontinued as being at variance with the terms of the Criminal Procedure Code.

4. We therefore order that a copy of this judgment should be sent to the Chief Presidency Magistrate 'with a direction that he should take appropriate steps to call the attention of other Presidency Magistrates to it. In the circumstances however which we have set out, we do not think that the omission of the Presidency Magistrate to record his reasons has in fact occasioned any failure of justice. We therefore think that the case is one to which Section 537, Criminal P. C., is applicable and we discharge the Rule. Rule 113 has been issued purely on the ground of sentence, and having regard to the circumstances of the case, we make the following alteration in the sentence. We direct that the sentence of three months' rigorous imprisonment imposed in this case should run concurrently with the sentence of two months rigorous imprisonment which we have upheld in Rule 74. The petitioner who is on bail must surrender to his bail bond and serve out the remainder of the sentence imposed on him.

Jack, J.

5. I agree.


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