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Durga Charan Singha and anr. Vs. IsamuddIn Mahmud - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1948Cal6
AppellantDurga Charan Singha and anr.
RespondentisamuddIn Mahmud
Excerpt:
- .....of as. 50 on a threat of preferring a criminal case against him and then allowed him to go.2. the learned magistrate found both the accused guilty and sentenced them on each count each to pay a fine of rs. 200 and in default to undergo rigorous imprisonment for two month. he also directed that half the fine, if realised, should be paid to 'the complainant as compensation.3. the petitioners appealed against the convictions and sentences and their appeal was heard by a magistrate of the 1st class specially empowered to hear appeals; and the learned magistrate in the court of appeal below dismissed the appeal and upheld the conviction and sentences.4. i have been asked to interfere with the decision of the court of appeal below on the ground that the judgment of the court below is not a.....
Judgment:
ORDER

Lodge, J.

1. The present petitioners were tried by a Magistrate of the 2nd class on charges Under Sections 384 and 312, Penal Code. The case for the prosecution was that the petitioners, being members of the Home Guard, entered the house of the complainant one evening, searched his rooms on the allegation that a theft had taken place in the house of one Pagla and then took the complainant against his will to the house of Pagla and kept him under confinement until 10 P.M. They extracted from him a sum of as. 50 on a threat of preferring a criminal case against him and then allowed him to go.

2. The learned Magistrate found both the accused guilty and sentenced them on each count each to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for two month. He also directed that half the fine, if realised, should be paid to 'the complainant as compensation.

3. The petitioners appealed against the convictions and sentences and their appeal was heard by a Magistrate of the 1st class specially empowered to hear appeals; and the learned Magistrate in the Court of appeal below dismissed the appeal and upheld the conviction and sentences.

4. I have been asked to interfere with the decision of the Court of appeal below on the ground that the judgment of the Court below is not a proper judgment and does not show that the case was properly considered by him. The judgment cannot be said to be a good judgment, or a proper judgment, inasmuch as at does not set out what the prosecution case is, what the defence was and how the prosecution case has been established. It is true that it is open to these defects, but, read with the judgment of the Court of first instance there can be no doubt what the learned Magistrate thought; there can be no doubt that he did apply his mind to the evidence and that he did come in fact to the necessary findings. Therefore, in spite of the fact that the judgment is of an unsatisfactory kind, that does not justify interference.

5. I have next been asked to interfere on the ground of sentences. The Magistrate in the Court of first instance was a Magistrate with 2nd class powers. The limit of his powers Under Section 32, Criminal P.C. is the imposition of a term of imprisonment not exceeding six months and a fine not exceeding Rs. 200 on each count, and Under Section 35, the imposition of double this amount as a total where the conviction was on more than one count. It is clear, therefore that the learned Magistrate imposed the maximum sentence of fine within his power on each count, It is further clear that the case for the prosecution was that the petitioners confined wrongfully the complainant for the purpose of extortion of money, that is to say, their offence was essentially one Under Section 347 and Section 384. It was one transaction and one offence, even though it comes within two of the definitions of the Code. Such being the case, it was improper to award two different sentences for the game set of acts and improper to give a sentence in excess of the Magistrate's power of punishment for one offence.

6. The Rule must, therefore, be made absolute in so far as the sentences are concerned. The convictions are upheld and the sentences Under Section 384, Penal Code are also upheld. The sentences Under Section 342 are set aside and no separate sentence is imposed under that section. The additional fine, if paid, shall be refunded.


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