1878 January 17.

[CRIMINAL REFERENCE.]

IN THE MATTER OF RAM MANIKYA CHUCKROBURTY
AND OTHERS.

Code of Criminal Procedure, section 453-Joinder of charges-Several offences committed.

Section 453 of the Code of Criminal Procedure is not to be construed as meaning that, no matter how many offences of the same kind a man may commit within one year, he may not be prosecuted for more than three. He may be separately tried for other offences.

THIS was a reference from the Sessions Judge of Noakhally.

The facts are set forth in his report, which is as follows:

"Ram Manikya Chuckroburty, Goluck Chowkeedar, and five others petitioned under section 295 of the Code of Criminal Procedure, on the ground of illegality and irregularities in their trials. The conviction arose out of the following circumstance :-Last Churuk Puja the villagers of Bassura (in Chagulnya Thanna) got up a mock swinging performance, the swingers being stained with pigeon's blood and the hook not passing through the flesh. The Police stopped it and a melée ensued, and the Police got assaulted.

"Subsequently the Sub-divisional Magistrate, Baboo Saroda Prosad Sarkar, with 2nd class powers, himself went out and investigated the case. The record shows, there was some misconduct on the part of the Police, but this Court has no other cognizance of it, and no further reference to it is needed. Many persons were accused of attacking the Police, and it transpired subsequently that money had been given freely to escape implication.

"The petitioners were charged with extorting bribes from the villagers through threats of being chalanned. The Deputy Magistrate had this matter investigated likewise and ten cases were sent up as proven. In eight thereof Ram Manikya was sentenced and in five Goluck, for taking sums from the country people. The former is what is called a "toorney," that is, an unlicensed village mooktear.

"They appealed to the District Magistrate unsuccessfully. They then petitioned this Court to call for the records. This was before the vacation, but by the formal request of petitioners' vakeels the hearing was adjourned till after the Pujas, as the pleaders went to their homes. As this Court has nothing to do with the merits of the case, but it is its province under Chapter XII only to look to regularity and legality or otherwise of the proceedings, I need only say that it cannot be said there is no evidence, nay that the evidence is sufficient. Hence no reference is called for on the ground of no evidence, which, it has been ruled, comes under 'irregularity.'

are

"Next, as to the legality or regularity in other respects. In the grounds for this petition many objections are urged; but at the hearing they on analysis vanish and are abandoned, except these two: (1) That the convictions in excess of three illegal and contrary to section 453 of the Code of Criminal Procedure; and (2) that the Deputy Magistrate was personally interested on account of the damage suit against him. The second it will be convenient to discuss first.

"In the course of the trial a suit was filed on 15th of June against the Deputy Magistrate by Ram Manikya for Rs. 200 in the Civil Court, on the allegation that the Deputy Magistrate had used abusive language to the accused by calling him a Badzad. On 16th of June, the very next day, application was made by accused to the Deputy Magistrate to transfer the case elsewhere, on the ground that he (accused) had filed that suit. This was refused, and repeated also unsuccessfully before the District Magistrate. [It may be mentioned incidentally that the damage suit resulted in an award of Rs. 10 damage, without costs to the criminally accused (the civil plaintiff) and the Civil Court found the defendant, the Deputy Magistrate, had used the expression, and was of course wrong in so doing, but that the plaintiff had, by his own conduct in trying to conceal himself behind his fellow prisoners from an identifying witness, given rise to the language.]

"Now, as the alleged interest in the criminal case was no antecedent interest, and as it would be obviously very undesirable that a criminal accused should, by filing a civil suit during the pendency of his criminal.case, procure a fresh trial, I hold

1878

IN THE MATTER OF RAM

MANIKYA BURTY AND

CHUCKRO

OTHERS.

1878

IN THE

MATTER OF

RAM MANIKYA

CHUCKRO

BURTY AND
OTHERS.

the criminal trial was not vitiated; and I note further, that the District Magistrate directed the Deputy Magistrate to retain and finish the case.

"The other ground for this motion, however, that the convictions are illegal in view of section 453 must be held fatal. These convicts have been sentenced for eight and five extortionate acts, Judgment. respectively, occurring about the same date. The acts are of the same kind, nay the very same, viz., extortion; and the prisoners have been charged and tried at the same time (viz., 31st of July, and 1st and 3rd of August). It cannot be doubted that if they had committed one hundred acts of extortion within one year of each other they would be liable to be charged and tried at the same time for three only.

"The Deputy Magistrate's explanation is annexed, but it appears to this Court he mistakes the law. He has-his sentences show -only had in view section 314, convictions" at one trial." The punishments aggregate a few days short of double his powers."

Section 453 of the Criminal which requires a separate distinct offence, by allow

The judgment of High Court (1) is as follows:We see no grounds for interfering. Procedure Code modifies section 452, charge and a separate trial for every ing three charges of three distinct offences of the same kind and committed within one year of each other to be tried at the same time. But this does not mean that, if at one time or within one year a man commits fifty distinct offences of the same kind, he shall not in one day be prosecuted for more than three such offences. This is clear from Illustration (b), section 454.

(1) AINSLIE and McDONELL, J.J.

Section 75, Indian Penal Code-Second Conviction-Sentence.

Where, soon after his release on expiry of a sentence of seven years' imprisonment on conviction of "receiving stolen property acquired by dacoity," a person is convicted of house-breaking and theft, he is sufficiently punished by a sentence of seven years in transportation; a sentence of transportation for life is too severe.

It is not the intention of the Legislature that a previous conviction should so enormously enhance the heinousness of petty offences.

CRIMINAL APPEAL against the order of the Sessions Court

of Dinagepore, convicting the appellant under sections 457 and 380 of the Indian Penal Code of house-breaking by night in order to commit theft, and of having committed theft in a dwellinghouse, having been previously convicted of dishonestly receiving stolen property acquired by dacoity (section 412), and seutencing him to transportation for life under section 75.

The facts of this case are sufficiently set forth in the following judgment of the Sessions Judge :

"The prisoner is charged with house-breaking with intent to commit theft, and again with theft in a dwelling-house, being an old offender. The Assessors would acquit on the first charge. On the second one would acquit, and the other would convict. I agree with the latter in preference to the former. The case is a very simple one. The prisoner's own statement corroborates the story for the prosecution, which there is, generally, no reason for doubting. It is a case requiring few words. When a man, who has only recently come out from a seven years' incarceration, is found so soon erring as in the present case, it is clear that he is a man who ought to be put beyond the reach of temptation, for his own sake, and for the sake of the community. In such a case limited imprisonment would seem to be an unsuitable punishment, and I do not think that transportation for life is more than should be awarded. The prisoner Shamjee Nashyo is sentenced to transportation for life."

VOL. I.

N 2

1878 February 6.

1878

SHAMJEH

NASHYO. Judgment.

The judgment of the High Court (1) was delivered by

JACKSON, J. :—

The prisoner was properly convicted, but the sentence appears to JACKSON, J. us to be greatly beyond the requirements of the case. His offence was that, in company with two others, he had stolen some articles of trifling value, a theft which under ordinary cir cumstances would have been adequately punished with a few months' imprisonment. But he had previously been convicted of receipt of property acquired by dacoity, and had undergone a sentence of seven years' imprisonment. For this reason the Sessions Judge, under the provisious of section 75 of the Indian Penal Code, has sentenced the prisoner to transportation for life, We think it was not the intention of the Legislature, and is not in accordance with reason, that a previous conviction should so enormously enhance the heinousness of petty offences. We reduce the sentence to one of seven years, and in deference to the opinion of the Judge we commute the imprisonment to transportation.

(1) JACKSON and CUNNINGHAM, J.J.