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Harbans Pandey and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.402
AppellantHarbans Pandey and ors.
RespondentEmperor
Cases ReferredNilmony Polder v. Queen
Excerpt:
sentence - separate sentences--rioting and hurt--accused taking individual part in assault--penal code (act xlv of 1860), sections 147, 149 and 323. - .....magistrate of the 24 perganahs to show cause why the sentences passed under section 323, indian penal code, on the first three petitioners should not be set aside on the ground that separate sentences could not be passed against them under both the sections 147 and 323, indian penal code.2. the three petitioners, referred to above, have been convicted under section 147, indian penal code, and have each been sentenced to rigorous imprisonment for six months and to pay a fine of rs. 50. they have also been convicted under section 323, indian penal code, and each sentenced to a further term of three months' rigorous imprisonment. objection is taken by them that the separate sentences under sections 147 and 323, indian penal code, are illegal, and reference is made to the full bench.....
Judgment:

1. This was a Rule issued to the District Magistrate of the 24 Perganahs to show cause why the sentences passed under Section 323, Indian Penal Code, on the first three petitioners should not be set aside on the ground that separate sentences could not be passed against them under both the Sections 147 and 323, Indian Penal Code.

2. The three petitioners, referred to above, have been convicted under Section 147, Indian Penal Code, and have each been sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 50. They have also been convicted under Section 323, Indian Penal Code, and each sentenced to a further term of three months' rigorous imprisonment. Objection is taken by them that the separate sentences under Sections 147 and 323, Indian Penal Code, are illegal, and reference is made to the Full Bench ruling in the case of Nilmony Poddar v. Queen-Empress 16 C. 442 where it was held that separate sentences passed upon persons for the offences of roiting and grievous hurt are not legal where it is found that such persons individually did not cause hurt, but were guilty of that offence under Section 149, Indian Penal Code. In the present case, however, there is a distinct finding that each of the three petitioners took an individual part in the assault. The Full Bench, ruling above cited does not, therefore, avail them. There is another case, namely, that of Mohur Mir v. Queen-Empress 16 C. 725 where it was held that separate terms of imprisonment under Sections 147 and 323, Indian Penal Code, would be legal if the men thus convicted had individually caused hurt. There is another case to the same effect, namely, the case of Ferasat v. Queen Empress 19 C. 105 in which also it was held that under the above circumstances, separate sentences are legal. In this last case, the effect of the case of Nilmony Polder v. Queen-Empress 16 C. 442 was explained.

3. In these circumstances, we are unable to interfere with the separate sentences passed on the first three petitioners; and we accordingly discharge this Rule.


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