Prayag Gope and Others vs Emperor

Adami, J.—This case comes before the Court in its revisional jurisdiction. The petitioners have been sentenced to various terms of rigorous imprisonment under Sections 379 and 144 and 143, Indian Penal Code. The first two petitioners have been sentenced to 18 months under Sections 379, 75 and 6 months u/s 144, the sentences running concurrently. The other three have been sentenced to three months u/s 143 and a fine of Rs. 50 u/s 379. The value of the properties stolen was Rs. 50.

Mr. Agarwala on behalf of the petitioners puts forward three points. The first is that after the defence had closed their case, the Court called the complainant as a Court witness and examined him and failed thereafter to examine the accused u/s 342, Criminal Procedure Code. The second point is that the case was tried by a Deputy Magistrate of the Second Class who after convicting the petitioners, forwarded the case to the Sub-Divisional Magistrate for sentence because he held that the sentences which the petitioners should receive would be greater than he had power of inflicting. The third point is that though the common object of the unlawful assembly was the theft of crops, the petitioners have been sentenced separately under Sections 379 and 143 or 144.

With regard to the first point I do not think that this Court will be inclined to interfere since the petitioners seems to be in no way prejudiced. The complainant was called as a Court witness and examined as such by the Court. The judgment of the lower Appellate Court shows that the Court questioned this complainant not as to occurrence but as to some matter in relation to the title of the lands. The petitioners had a chance of cross-examining him but refrained from doing so. If they were unwilling to cross-examine him as a Court witness it would be un likely that they would have been anxious to make any statement to explain away any evidence given by the complainant as a Court witness. I do not think that Section 342, Criminal Procedure Code, can be brought into play where a Court witness is examined, be he complainant or any other person.

With regard to the second point, Section 349 clearly states that if the Magistrate considers a person to be guilty and to deserve a larger penalty than the Magistrate himself can impose, the Magistrate should send the case to a superior Court for imposing a fitting sentence in the present case the Deputy Magistrate of the Second Class convicted the petitioners. This was wrong. After an expression of opinion as to the petitioner''s guilt, the Magistrate should have forwarded the case without any record of conviction.

On the third point there is no doubt that the common object being such as it is described in the charge the petitioners could not be separately convicted and sentenced under the two sections--section 379 and Section 143 or Section 144 and the conviction and sentence under one of these two sections must be set aside. The difficulty is to know which conviction and sentence should be set aside. If the conviction and sentences u/s 379 are set aside, then also, the two petitioners, who have been subjected to a heavier punishment by reason of their previous conviction, will also escape the effects of the previous convictions. Ordinarily the case is one which should go back for re-trial owing to the Trial Court not carrying out the provisions of Section 349, but as pointed out by Mr. Agarwala the case has a larger element of civil nature in it and also the petitioners have already served a considerable part of their sentence.

With regard to the previous convictions it is to be remembered that those convictions were passed in 1898 and 1902 and there is nothing to show that these persons have since then led otherwise than a good life.

We set aside the convictions u/s 379, Indian Penal Code and reduce the sentences to the period already undergone under Sections 143 and 144. The fine u/s 379, if paid, will be refunded.

Sen, J.

I agree.