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Superintendent and Remembrancer of Legal Affairs Vs. Harold Joseph Osmond - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ548
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentHarold Joseph Osmond
Excerpt:
- .....the appellant is the government of west bengal. section 411a gives a right of appeal to 'any person convicted at a trial held by the high court in exercise of its original criminal jurisdiction' and it goes on to provide in three separate clauses for an appeal on various grounds. it is perfectly clear that the right of appeal given by the section is given only to a person who is convicted at a trial and is not given to the prosecution. an appeal against the sentence is dealt with by clause (c) of section 411a (l) which provides that the person appealing may, with the leave of the appellate court, appeal against the sentence passed, unless the sentence is one fixed by law. this appeal against the sentence is quite dearly an appeal by the person convicted, for the opening words of.....
Judgment:

Chakravartti, J.

1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, West Bengal, against the sentence passed on the respondent, Harold Joseph Osmond, at a Sessions trial held on the Original Side of this Court on 9th and forth February 1948. The respondent was charged under three counts under the Arms Act, of one of which he was acquitted but he was convicted of the other two. The learned Judge sentenced him to a fine of as. 500 under one of the counts of which he was convicted, but did not pass any separate sentence on the remaining charge proved against him, The present appeal is directed only against the sentence imposed. The view of the Crown is that the sentence is unduly lenient and ought to be enhanced.

2. The learned Junior Standing Counsel frankly stated at the very outset that he had considered Section 411A, Criminal P. C, under which this appeal had been preferred and had formed the opinion that the appeal was incompetent. In our opinion, that is clearly so, As already stated, the appellant is the Government of West Bengal. Section 411A gives a right of appeal to 'any person convicted at a trial held by the High Court in exercise of its original criminal jurisdiction' and it goes on to provide in three separate clauses for an appeal on various grounds. It is perfectly clear that the right of appeal given by the section is given only to a person who is convicted at a trial and is not given to the prosecution. An appeal against the sentence is dealt with by Clause (c) of Section 411A (l) which provides that the person appealing may, with the leave of the appellate Court, appeal against the sentence passed, unless the sentence is one fixed by law. This appeal against the sentence is quite dearly an appeal by the person convicted, for the opening words of Section 411 a (i) as to who may appeal) govern all the clauses which are set out under Sub-section (l).

3. There remains to consider Sub section (2). That section gives a right to the Provincial Government to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction. Clearly, the present is not a case of acquittal, because the respondent was convicted of two charges and sentenced. The Crown is not appealing against his acquittal of the third charge.

4. It is somewhat curious that the Legislature, in introducing Section 411A into the Code of Criminal Procedure and providing for appeal from Sessions trials held by the High Court, should have omitted to make some provision corresponding to Section 439 of the Code under which either the. Crown or a private person in certain circumstances may move the High Court in revision against an inadequate sentence. The fact, however, remains that no such provision has been made with respect to convictions at Sessions trials held by a High Court and, as the Code now stands, there cannot possibly be any appeal or application for revision for enhancement of a sentence passed at such a trial, however inadequate such sentence may be.

5. In our opinion, the construction put upon the section by the learned Junior Standing Counsel is clearly right, and we need only observe that his admission that he could not press thi3 appeal was in accordance with the highest traditions of the officers of the Crown.

6. The appeal is accordingly dismissed. The, respondent need not surrender to his bail and he is hereby discharged from his bond. The police are directed to return to the respondent any personal belonging of him that may be in tboir possession, other than articles which are exhibits in the case.

Harries, C.J.

7. I entirely agree


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