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Calcutta High Court
Fatiar Bap And Ors. vs King-Emperor on 26 January, 1927
Equivalent citations: AIR 1927 Cal 575, 103 Ind Cas 799
Author: Mitter


Mitter, J.

1. This rule was issued on the District Magistrate of Mymensingh to show cause why the conviction and sentence of the petitioners should not be set aside or such other order made as this Court may deem fit and proper on grounds Nos. 1 and 2 of the petition to this Court. Ground No. 1 runs as follows:

That the conviction and sentence passed upon the petitioners are bad in law for noncompliance with the provisions of Section 360 of the Criminal Procedure Code.

2. It has not been shown to us that any non-compliance with provisions of Section 360, Criminal P.C. has resulted in any failure: of justice and having regard to the decision of the Judicial Committee which disapproved a decision of this Court with reference to the effect of the provisions of Section 360, we think this ground in revision fails.

3. The second ground on which the rule was issued ran to the effect that the conviction and separate sentence against the Petitioners on charges under Sections 323, 324 and 325, I.P.C., are bad in law inasmuch as the acts in respect of which such charges were made were included within the charge under Section 147, I.P.C. and two authorities were cited in support of this ground, one is the case of Ramdihal v. Empress [1898] 3 C.W.N. 174 and the other is Alim Sheikh v. Shahazada Singh [1904] 8 C.W.N. 483. These decisions were given before the amendment of Section 35, Criminal P.C. As has been held in a recent decision in the case of Kanchan Molla v. King-Emperor , the old cases cannot now be held to be good law, after the amendment in 1923 by which words in Section 35 of the Criminal Procedure Code : “A person is convicted at one trial of one or two more distinct offences” the word “distinct” has been deleted. We think there is no substance in this ground also. Besides hurt was caused by the accused individually.

4. It has been urged that the sentence in the circumstances of the case is too severe. We do not think that on the facts of the case we should interfere with the sentence passed.

5. The result is that the rule is discharged. The accused will surrender to their bail-bonds.

Duval, J.

6. I agree.

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