Emperor vs Kumhra Munda

Manohar Lall, J.—This is a reference by the learned Deputy Commissioner of Ranchi, arising out of criminal Appeal No. 70 of 1941, which was preferred before him by three appellants, Kumhra Munda, Khiona Munda and Meghu Munda. Appellant 1 was convicted u/s 325, Penal Code, and sentenced to pay a fine of Rs. 50. The other two appellants were convicted u/s 323, Penal Code, and sentenced to a fine of Rs. 30 each. The trial was held by Mr. J.D. Choudhury, a Second Class Magistrate. The appeal was admitted by the learned Deputy Commissioner on 6th May 1941, when he called for the record and fixed 23rd May for hearing. In the meantime, we find, he had ordered stay of realization of fines. The appeal was put up for hearing on 23rd May, but as the learned Deputy Commissioner was not free on that day he directed the record to be put up for hearing on 26th May. There is a clerical error in the order sheet, which should read as 26th May 1941 instead of 26th June 1941. On that date the learned Deputy Commissioner passed the following order:

The appellants file a petition that they would file a transfer. The sentence is illegal, as there is a sentence of fine only when there should have been a sentence of imprisonment, the conviction being u/s 325, Penal Code. Put up to-morrow for reference.

We are informed that the appellants filed this petition because they had come to know that the learned Deputy Commissioner was contemplating a reference to the High Court. The learned Deputy Commissioner on 13th June 1941, made this reference. After getting out the facts of the case he came to the conclusion, at p. 7, that he could not see that the finding of the learned Magistrate was in any way perverse, or was not justified by the evidence on the record. On the other hand, he considered that the conviction was quite proper, but as the sentence passed by the learned Magistrate, u/s 325 was illegal inasmuch as no substantive sentence of imprisonment had been passed, the learned Deputy Commissioner felt compelled to make this reference to this Court. He has forwarded to this Court the "explanation of the Magistrate, who tried this case, with regard to the sentence passed by him. The learned Magistrate states that he considered the sentence, which he had passed, was quite adequate in view of the facts which appeared from the evidence on the record, the circumstances of the case, satisfied him that the matter was of a petty character (sic).

When this reference was called on for hearing, Mr. L.K. Chaudhury appearing for the accused Kumhra Munda drew our attention to the fact that the appeal preferred by the appellants was still undisposed of. On a perusal of the order sheet this appears to be so. The situation, therefore, is that the learned Deputy Commissioner has made a reference without disposing of the appeal. Indeed the appeal of the other two appellants before him still remains undisposed of even if it is accepted that the letter of reference amounts to a disposal of the appeal sc far as the accused Kumhra Munda is concerned. In these circumstances the reference must be rejected, and the records returned to the learned Deputy Commissioner, so that the appeal of all the three appellants may be disposed of in accordance with law.

But it has been submitted by the learned advocate for Kumhra Munda that as the learned Deputy Commissioner has, already expressed his views in regard to the facts of the case, the appeal should be directed to be heard by the learned Judicial Commissioner of Ranchi. I think this prayer is reasonable. We, therefore, transfer the Criminal Appeal No. 70 of 1941 from the file of the Deputy Commissioner of Ranchi, who on receipt of the records will dispose of the appeals of all the appellants in accordance with law. After the appeal has been disposed of by the learned Judicial Commissioner of Ranchi and if he comes to the conclusion that the conviction should be upheld, then in that case it will be open to him to consider whether it is desirable that having regard to the nature of the evidence and the circumstances of the case, the matter should be referred to this Court as was done by the learned Deputy Commissioner himself. He will bear in mind the observations of this Court in Dulari Koeri Vs. Fauzdar Khan and Another, .

Meredith, J.

I agree.