Paramasiva Pillai And Others Accused- v. Emperor

1. We are unable to agree with the contention of the Petitioner's vakil that the facts found by the Appellate Magistrate do not warrant conviction under section 147, Indian Penal Code.

2. The other questions raised are concluded by authority.

3. The 2nd Class Magistrate convicted the accused under sections 147 and 379, Indian Penal Code, but passed only a single sentence for both the offences. The Appellate Court acquitted the accused of the offence under section 379, but maintained the sentence in its entirety. It has been held by this Court in Criminal Revision Case No. 141 of 1905 (Weir Vol, II, page 487 a, 4th Edition), that this amounts to an enhancement of the sentence passed on the offence, the conviction for which alone is maintained. The same view has been taken in Bombay, Queen-Empress v. Hanma (I.L.R, 22, Bom, 160); and Calcutta, Ramgan Kunjra v. Ram-khelwan Chowbe (I.L.R, 24 Cal. 316). In such cases some reduction of sentence by the Appellate Court must be made, unless the Court thinks that the sentence ought not to be reduced, in which case it should refer the matter to the High Court for enhancement of the sentence.

4. As regards the order for security it has been held in the cases reported in Muthia Chetty v. Emperor (I.L.R 29 Mad, 190); and Mahmudi Sheikh v. Aji Sheikh (21 Cal. 622) that the Appellate Court cannot make an order under section 103 of the Code of Oriminal Procedure unless the conviction on which the order is based was by a Court of the description specified in the first para, of the section. In the present case, the conviction having been by a 2nd Class Magistrate, was not by such a Court, and the order to give security was therefore illegal, The accused have undergone five weeks' rigorous imprisonment. Having regard to the fact that the accused have been acquitted by the Appellate Court on the charge of theft we reduce the sentence of rigorous imprisonment to that already undergone by them. We also set aside the order for security. We do not interfere with the fine imposed on the 1st accused.

5. Sentence modified.

6. Order for security set aside.