Emperor v. Dharam Das And Another

Tudball, J.:— The facts of the case out of which this application for revision has arisen may briefly be stated as follows:—

Two parties claimed titled to certain mahua trees. One party apparently was in possession and peaceably engaged in gathering the fruit when the opposite party arrived armed with lathis, drove them away, and took possession. In the course of the not grievous hurt was inflicted by some member or members of the applicants' (the aggressive) party. The two present applicants have been convicted by a Magistrate of the second class and have been sentenced for the offence of not under section 147, I.P.C, to six months rigorous imprisonment each, and for the offence of voluntarily causing grievous hurt under section 325, I.P.C, read with section 149, I.P.C, to three months rigorous imprisonment each, i.e, to a total of nine months rigorous imprisonment each. The applicants appealed to the District Magistrate, who dismissed their appeal, confirmed the convictions and sentences, and acting under section 106, clause (3), of the Criminal Procedure Code, ordered the present applicants to furnish security to keep the peace.

Two points are raised in this Court by the applicants. The first is that the order of the District Magistrate purporting to have been passed under section 106 of the Code of Criminal Procedure was without jurisdiction in that the Magistrate who originally, tried the case had no power to pass an order under section 106, clause (1). The second point is that the sentences passed by the Magistrate are illegal. The applicants base their first contention upon a ruling of the Madras High Court in Muthiah Chetti v. Emperor. In that case a Bench of that Court held that “the power given to an appellate court to make an order under this section is not an unlimited power to make such an order in any circumstances, but is to be taken as giving the appellate court power to do only that which the lower court could and should have done, and therefore that the power of the court to pass such an order is confined to cases where the conviction has been by a court named in the section and in circumstances required by the section.” The learned judges gave no reason for their opinion. This was followed in another case, Paramasiva Pillai v. Emperor. In the case of Dorasami Naidu v. Emperor, though this ruling was followed, its correctness was clearly doubted. The Judges who constituted that Bench remarked as follows:—“Although we are not prepared to dissent from the construction which has been placed upon clause (3) of the section, having regard to the language used, yet we think it may well be doubted whether the Legislature intended that the power of the appellate court and of the High Court when exercising its powers of revision, should be confined to such narrow limits.” They then proceed to give what in my opinion are very good reasons for holding that the section places no limit on the power of the appellate court. Clause (3) of the section distinctly says that an order under this section may “also” be made by an appellate court. There is nothing in the language of the section which in my opinion limits the power of an appellate court. This point was also considered in Emperor v. Momin Malita, where the ruling in 29 Madras, 190, was followed, but no reason was given. It was also considered by the Bombay High Court in Emperor v. Bhausingh Dhumalsingh. The Madras cases were quoted before the court. The judgement runs as follows:—“We are not prepared to accept the construction placed upon section 106 in those cases. We think that the clause (3) makes it clear that the order for security may be made in appeal whether the original court had jurisdiction to pass such an order or not. The clause runs ‘An order under this section may also be made by an appellate court or by the High Court when exercising its powers of revision’; the word ‘also’ plainly implying that it may be independently made by those courts as well as by the original courts specified in the first; and it is neither suggested nor implied that the powers of the original court should in any way control or limit those of the appellate or revisional authority.” The learned judges then refer to the case of Dorasami Naidu v. Emperor mentioned above, and agree with the arguments of the learned judges therein, throwing doubt on the correctness of the decision in Muthiah Chetti v. Emperor. I fully agree with the opinion expressed by the Bombay High Court. In my judgement the power of an appellate court under clause (3) of the section is not limited in any way by the powers of original court which tried the case.

In regard to the second point, the argument on behalf of the applicants is, that section 71 of the Indian Penal Code, applies to the circumstances of this case; and that under that section the maximum sentence which a Magistrate of the second class could pass was six months' rigorous imprisonment, and that therefore the total sentence of 9 months' imprisonment is illegal. The question whether section 71 applies to the facts of the present case is covered by authority. It was fully discussed in Queen-Empress v. Bisheshar. The circumstances of that case were similar to those of the present case. It was therein held that section 71 did not apply, and the Magistrate was empowered to pass separate sentences for each of the offences under sections 147 and 325, Indian Penal Code, to the full extent of his powers. That ruling has not, so far as we know, been differed from in this Court, but has been regularly followed, and I see no reason whatsoever to differ from it. I would therefore reject the application for revision.

Chamier, J.:— On the first question, I entirely agree with what my learned brother has said and have nothing to add.

On the second question I consider I am bound by the previous decision of this Court to which he has referred, and which has, I understand, been consistently followed in this Court. I agree in the order proposed.

By the Court.— Order of the Court is that the application for revision is rejected.

Application rejected.