EMPEROR Vs. AZMAT SHAH KHAN

JUDGEMENT

(1.) ON the facts found in this case I cannot interfere with the conviction. But I think that the sentence, even as modified by the learned Sessions Judge, is under the circumstances of the case unnecessarily severe. I accordingly maintain the conviction, but reduce the sentence on Azmat Shah to one of six months rigorous imprisonment and on Abdul Hakim, Najibullah, Asghar Husain, Wahidyar Khan, and Abdulla to one of three months rigorous imprisonment each.

(2.) MR. Hamilton has argued that the concluding words of the appellate court s order are ultra vires. The learned Sessions Judge says: "I am not satisfied that the whole of the katha (catechu) recovered was that taken from Krishnanand and the parties will be left to establish their claim to it in the Civil Court." It is argued that under Section 517 of the Criminal Procedure Code the only court that could pass orders under that section was the court trying the case, and reliance is placed on In re Devidin Durgaprasad (1897) I.L.R., 22 Bom., 844. This decision, however, was passed before the present Code of Criminal Procedure came into force. It seems to me that Section 520 gives an appellate court full power to pass such an order. The same view was taken by the Calcutta High Court in Baloram, Gogai v. Chintaram Kohta (1904) 9 C.W.N., 549.