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Calcutta High Court
The Empress vs Mohim Chunder Rai And Anr. on 10 May, 1878
Equivalent citations: (1878) ILR 3 Cal 765
Author: Maclean
Bench: R Mitter, Maclean


JUDGMENT

Maclean, J.

1. The appellants have been convicted by the Sessions Court of the 24-Pargannas of an offence under the Registration Act, VIII of 1871, and as the trial was held with a jury, the petition of appeal filed on 13th April was directed to show certain errors of law, such as defects in the Judge’s charge to the jury. By a subsequent petition of 17th April, the prisoners claim to be heard against the conviction on questions of fact as well as law, as the offence of which they have been convicted is not one of those to which trial by jury has been made applicable by the Government notification of January 1862 (Calcutta Gazette, 8th January 1862, p. 87).

2. It has been contended before us by the Government Pleader that the Sessions Judge was competent to try the prisoners with a jury notwithstanding that the offence charged is not included in the Government notification referred to, and therefore the prisoners are not entitled to appeal against their conviction except upon matter of law; but it is not necessary for the purposes of this appeal to decide that question. The trial by a jury of an offence triable with assessors is not invalid on that ground Section 233, Criminal Procedure Code–Explanation)[1]; but it appears to me that the prisoners, who would have been entitled to an appeal on the facts, if the case had been tried with assessors, are not debarred from that merely by the fact that their trial by jury is not invalid. An error of procedure not affecting the merits of the case ought not to affect the prisoner’s right of appeal

3. Dealing, however, with this appeal as an appeal upon the facts, I consider the conviction of the prisoners a proper one, and I would dismiss the appeal.

Mitter, J.

4. I concur; but I do not desire to express any opinion as to whether the prisoners are entitled to appeal on questions of fact. But assuming that they have this right, I concur with my learned colleague that the conviction of the prisoners is fully supported by the evidence. We accordingly dismiss the appeal.


 [1] 
  Section 233: The Local Government may order that the trial of all offences, or of any
                          particular class of offences, before any Court of Session, shall be
Local Government may      by jury, in any district and such Local Government may from
order trials before Court of time to time revoke or alter such order. Orders passed under
Session to be by jury.    this section shall be published in Official Gazette and in such
                          Other manner as the Local Government from time to time' direct.

Explanation. If an offence triable with assessors is tried by a jury, the trial shall not on
that ground merely be invailid. If an offence triable by a jury is tried with assessors, the 
trial shall not on that ground merely be invalid, unless objection be taken before the Court 
records its findingh.

 


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