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Khagendra Nath and ors. Vs. Thandaram Samanta and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Case NumberCriminal Revn. No. 939 of 1948
Judge
Reported inAIR1951Cal454
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 35 and 413
AppellantKhagendra Nath and ors.
RespondentThandaram Samanta and anr.
Appellant AdvocateS.S. Mukherjee, Adv.
Respondent AdvocateDebabrata Mukherjee, Adv.
Cases ReferredKali Charan Sardar v. Adhar Mandal
Excerpt:
- .....in italics). we are unable to accept this view though we agree that an appeal lay because the total fine of rs. 80 exceeded the limit of rs. 50. in the case of kali charan sardar v. adhar mandal : air1939cal274 a different attempt was made to support a claim for a right of appeal where two sentences of fine had been passed, the aggregate not exceeding rs. 50. there the terms of section 415, cr. p. c., were relied upon but the contention put forward was rejected by edgley j. apart from the actual decision in that case any argument on these lines based on section 415, cr. p. c., has been removed by the recent amendment of the sentence by act vi [6] of 1945. the amendments in fact accepts the view taken by edgley j. & removes the matter beyond all doubt.2. in none of the cases just.....
Judgment:

Roxburgh, J.

1. In this case three petnrs. were each convicted under Section 296, I. P. C., & sentenced to pay a fine of Rs. 40 in default to suffer six weeks R. I. They were also convicted under Section 352, I. P. C., & each sentenced to pay a fine of Rs. 10 in default to suffer R. I. for ten days. There was also an order of compensation. They appealed to the Ses. J. of Howrah who rejected their appeal as being incompetent relying on the case of Nawabali Haji v. Jainab Bibi : AIR1932Cal551 hence the present rule. In that case, it was held that in Section 413, Cr P. C., the words 'a sentence of fine' must be held to include cases where the aggregate sentence does not exceed a fine of rupees fifty. In that case there is a reference also to the case of Akabbar Ali v. Emperor : AIR1931Cal642 where a different argument had been accepted to justify an appeal in a case where two sentences of fine had been imposed. That argument has also been placed before us. There the two sentences of fine of Rs. 40 each were imposed & it was held that Section 408, Cr. P. C., which provides the right of appeal says nothing about the sentence & that a general right of appeal was given by that section & any provision restricting the right of appeal must be strictly construed. Therefore when in Section 413, Cr. P. C., it is said that there shall be no appeal by a person convicted in a case in which a Ct. of Session passes a sentence of imprisonment not exceeding one month only or in which a Ct. of Session or Dist. Mag., or other Mag. of the first class passes a sentence of fine not exceeding Rs. 50 only, the restriction in the section will have no application where the Ct. passes two or more sentences. It will be seen that the view depends on giving particular emphasis to the article a which I have underlined (here in italics). We are unable to accept this view though we agree that an appeal lay because the total fine of Rs. 80 exceeded the limit of Rs. 50. In the case of Kali Charan Sardar v. Adhar Mandal : AIR1939Cal274 a different attempt was made to support a claim for a right of appeal where two sentences of fine had been passed, the aggregate not exceeding Rs. 50. There the terms of Section 415, Cr. P. C., were relied upon but the contention put forward was rejected by Edgley J. Apart from the actual decision in that case any argument on these lines based on Section 415, Cr. P. C., has been removed by the recent amendment of the Sentence by Act VI [6] of 1945. The amendments in fact accepts the view taken by Edgley J. & removes the matter beyond all doubt.

2. In none of the cases just mentioned have the provisions of Section 35 (3), Cr. P. C., been referred to. This runs:

'For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

The provision has been overlooked no doubt because it is rather unhappily placed in the Code, although it is connected with the matters in Section 35 as it refers to the question of separate sentences passed in one trial & the question of aggregate sentences it is really a provision relating to appeals. The words 'the aggregate of consecutive' were substituted for the word 'aggregate' by the amendment of 1923. No doubt the intention was to make it clear that where concurrent sentences of imprisonment had been imposed these were not to be added together for the purpose of determining the total sentence for the purpose of appeal. This is mere common sense, the intention of the provision being clearly that for the purpose of appeal the test should be that the total period during which the accused was liable to remain in prison in cases of sentences of imprisonment & the total fine in the case of separate sentences of fine. The amendment, however, by the use of the word 'consecutive' creates a little difficulty in respect of sentences of fine but in my opinion the provisions of the section even as amended are to be read as including the aggregate sentences of fine. The test under Section 418, Cr. P. C., as to whether a right of appeal is barred is in the case of sentences of imprisonment, the aggregate of the sentences of imprisonment imposed & in the case of sentences of fine, the aggregate of the sentences of fine imposed. In the present case, the total fines admittedly do not exceed Rs. 50 & therefore no appeal lay & the Rule is accordingly discharged.

Chunder, J.

3. I agree with the order discharging the Rule but reserve my opinion as to the point of law discussed.


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