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Kali Charan Sardar Vs. Adhar Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1939Cal274
AppellantKali Charan Sardar
RespondentAdhar Mandal and ors.
Cases ReferredMakrand Singh v. Ganga
Excerpt:
- .....this decision to the sessions judge of khulna. from his letter of reference it appears that the learned judge was doubtful whether an appeal actually lay to him or not with regard to this matter. he therefore decided to treat the appeal as a petition for revision and he has referred the case to this court with a recommendation that the sentences passed upon the petitioners should be set aside.2. the first point for decision in connexion with this matter is whether or not an appeal lay to the sessions judge against the order passed by the subdivisional magistrate of satkhira. the only ground upon which it could be held that an appeal : lay to the learned judge would be to hold that an appeal lies under section 415, criminal p.c., when two or more non-appealable sentences of fine are.....
Judgment:
ORDER

Edgley, J.

1. In this case the petitioners were convicted by the Subdivisional Magistrate of Satkhira under Sections 147 and 323, I.P.C., and were sentenced to pay fines of Rs. 10 each or in default to suffer rigorous imprisonment for 10 days under each of those Sections. An appeal was preferred against this decision to the Sessions Judge of Khulna. From his letter of reference it appears that the learned Judge was doubtful whether an appeal actually lay to him or not with regard to this matter. He therefore decided to treat the appeal as a petition for revision and he has referred the case to this Court with a recommendation that the sentences passed upon the petitioners should be set aside.

2. The first point for decision in connexion with this matter is whether or not an appeal lay to the Sessions Judge against the order passed by the Subdivisional Magistrate of Satkhira. The only ground upon which it could be held that an appeal : lay to the learned Judge would be to hold that an appeal lies under Section 415, Criminal P.C., when two or more non-appealable sentences of fine are combined. There is a decision of the Oudh Chief Court in favour of this proposition, namely Makrand Singh v. Ganga , in which it was held that Section 415, Criminal P.C., allowed an appeal not only when punishments of different kinds were combined but also in the case of the combination of punishments of the same kind. A different view was taken in this Court, with regard to this matter by Mitter J. in Nawabali Haji v. joinab Bibi : AIR1932Cal551 , in which the learned Judge held that the words 'a sentence of fine' in Section 413, Criminal P.C., must be held to include the cases where the aggregate sentence does not exceed a fine of Rs. 50rder It would follow therefore according to the view held by Mitter J. that there can be no appeal in which the aggregate combined sentences do not exceed Rs. 50; with this view I agree. Section 415, Criminal P.C., provides that an appeal may be brought, against any sentences referred to in Sections 413-and 414 by which any two or more of the punishments mentioned therein are combined. The punishments mentioned in Sections 413 and 414 are imprisonment and fine. In this connexion it is significant that in Section 414, Criminal P.C., as the Section stood before it was amended in 1923, another punishment was also mentioned, namely whipping. To my mind the combination of punishments which is contemplated by Section 415 of the Code as these Sections now stand after the amendment of 1923, refers to a combination of the punishments of imprisonment and fine, but this Section in my opinion can have no application in a case in which two non-appealable sentences of fine have been passed and the aggregate amount of fine does not exceed Rs. 50rder

3. The learned Judges who decided Makrand Singh's case cited above, refer to the difficulty created by the presence in Section 415 of the Code of the words 'two or more' when only two punishments are mentioned in Sections 413 and 414. In my view the presence of these words in the Section must be due to the fact that at the time when the Amending Act of 1923 was passed and sentences of whipping were made appealable the necessity of making slight consequential amendment in Section 415 escaped the notice of the Legislature. The fact remains however that as the Sections now stand two punishments are mentioned in Sections 413 and 414, viz. the punishments of imprisonment and fine and as pointed out above; Section 415, I think, only refers to a combination of those particular punishments. In this view of the ease, I do not consider that an appeal lay to the learned Sessions Judge. Therefore he had no option but to refer this case to this Court. The reference is accepted for the reasons set forth in the letter of the Sessions Judge, dated 14th November 1938. The conviction and sentences passed upon the petitioners are set aside. The fines if already paid will be refunded.


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