AJOYENDRA SEN Vs. STATE

JUDGEMENT

(1.) The Appellant Ajoyendra Sen alias Khokan was tried by a recent Criminal Sessions of this Court by Guha Roy J. with the aid of a common jury on a charge under Section 376 of the Indian Penal Code and convicted on a majority verdict of 6 to 3. The learned Judge considered the accused to be between 15 and 16 years of age and accordingly, instead of sentencing him to imprisonment, directed him under Section 22 of the Bengal Children Act to be detained in a reformatory school for a period of two years. Against that conviction and sentence, the accused has appealed.

(2.) Before proceeding further, it is necessary to say a word about the form of the appeal. Two petitions of appeal were filed, one headed simply "Section 411A of the Code of Criminal Procedure" and the other headed "Section 411A(1)(c)". The second petition contained a prayer for leave to appeal against the (sic)tence passed, but no such leave was granted. The other Pe(sic)tained no prayer for any leave at all and, therefore, that petition could serve only as a petition of appeal on grounds which the accused was entitled to take as a matter of law. Under Clause (a) of Section 411A(1), such grounds are grounds of appeal which "involve a "matter of law only." Had the matter rested there, the Appellant would have been limited to grounds of law.

(3.) It appears, however, from the order admitting the appeal that although no prayer was ever made for leave to appeal under Clause (b) of the section, such leave was nevertheless given. The order admitting the appeal states that the appeal is admitted under Section 411A(1)(a) and that leave is given to the Appellant to appeal under Section 411A(1)(b) of the Code of Criminal Procedure. Clause (b) speaks of grounds of appeal which involve a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate court to be a sufficient ground of appeal. The order admitting the appeal in the present case did not limit the leave given under Clause (b) to any particular kind of ground and consequently the Appellant is entitled to the widest construction that can possibly be put upon the terms of the order by which leave was given. The appeal, therefore, must be regarded as an appeal on grounds of law, grounds of fact and grounds of mixed fact and law.