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Karim Buksh and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.796
AppellantKarim Buksh and anr.
RespondentEmperor
Cases ReferredEmperor v. Momin Malita
Excerpt:
criminal procedure code (act v of 1898), section 106(3) - appellate court, power of, to require security--conviction by magistrate of second or third class. - 1. there is a decision of this court, emperor v. momin malita 35 c. 434 : 7 c.l.j. 602 : 12 c.w.n 752 : 4 m.l.t. 340 : 8 cr. l.j. 9, that an appellate court cannot exercise the power given by section 106(3) of the criminal procedure code, where the conviction has not been by a court specified in sub-section (1). having regard to the fact that amendment of the code is under contemplation it does not appear to be worthwhile to refer the question to a full bench, though the decisions in the madras and bombay high courts are to the contrary effect. we accordingly, without expressing an opinion on the subject, make the rule absolute and set aside the order under section 106(3) in this case. rule made absolute.
Judgment:

1. There is a decision of this Court, Emperor v. Momin Malita 35 C. 434 : 7 C.L.J. 602 : 12 C.W.N 752 : 4 M.L.T. 340 : 8 Cr. L.J. 9, that an Appellate Court cannot exercise the power given by Section 106(3) of the Criminal Procedure Code, where the conviction has not been by a Court specified in Sub-section (1). Having regard to the fact that amendment of the Code is under contemplation it does not appear to be worthwhile to refer the question to a Full Bench, though the decisions in the Madras and Bombay High Courts are to the contrary effect. We accordingly, without expressing an opinion on the subject, make the rule absolute and set aside the order under Section 106(3) in this case. Rule made absolute.


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