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Allahabad High Court
Queen-Empress vs Ishri on 6 November, 1894
Equivalent citations: (1895) ILR 17 All 67
Bench: J Edge, Kt., Blair


JUDGMENT

John Edge, Kt., C.J. and Blair, J.

1. A Deputy Magistrate convicted Ishri and others of the offences punishable under Sections 225B and 342 of the Indian Penal Code, and for the offence under Section 225B he sentenced the accused to three months’ rigorous imprisonment, and further he sentenced them to four months’ rigorous imprisonment in respect of the offence under Section 342. They appealed. The appeal was heard by the District Magistrate of Agra. He maintained the convictions, but altered the sentences. He sentenced them to three months’ rigorous imprisonment and a fine of ten rupees, or, in default, 6 weeks, rigorous imprisonment for the offence under Section 225 B, and to three months’ rigorous imprisonment and a fine of ten rupees, or, in default, 6 weeks’ rigorous imprisonment for the offence under Section 342. He also ordered the accused to enter into their personal recognizances in Rs. 100 with two sureties in Rs. 50 each to keep the peace for one year, or, in default, to undergo simple imprisonment for one year. It has been rightly held by the High Court of Calcutta in In re Aslu v. The Queen-Empress I.L.R. 16 Cal. 779, and by, this Court in Queen-Empress v. Lachman Weekly Notes 1890, p. 20, that the Magistrate of a district when acting as an appellate Court in criminal cases cannot make an order under Section 106 of the Code of Criminal Procedure. Consequently the orders in respect to recognizances are bad, and, so far as the recognizances are concerned, they are quashed. The bonds, if given, are to be returned.

2. It appears to us that the Magistrate of the district exceeded his jurisdiction under Section 423 of the Code of Criminal Procedure in respect of the sentences under Section 225B, of the Indian Penal Code in this way. He maintained the sentence of three months’ rigorous imprisonment under that section, and added to it a fine of ten rupees, or in default six weeks’ rigorous imprisonment. That was dearly an enhancement of the sentence. The Magistrate also, in our opinion, enhanced the sentences passed under Section 342 of the Indian Penal Code. It is true that he reduced the sentence of four months’ rigorous imprisonment to one of three months’ rigorous imprisonment, but he added to the sentence a sentence of a fine of ten rupees, or in default six weeks’ rigorous imprisonment. The result might be that, if the ten rupees were not paid, each of these men would have to undergo practically four months and two weeks’ rigorous imprisonment instead of four months’ rigorous imprisonment for the offence under Section 342. We set aside so much of the orders of the District Magistrate as related to the fines, and the fines, if paid, must be returned at once.


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