THOMAS Vs. EMPEROR

JUDGEMENT

(1.) This is an application by O.W. Thomas who is a prisoner in the Presidency Jail, for leave to appeal, after determination of his status, against his conviction and against the sentence passed on him by Mr. Justice B.B. Ghose presiding at the Fourth Criminal Sessions held in this Court in July 1925.

(2.) The prisoner was found guilty by a special jury of having committed an offence punishable under Section 471, and thereafter the learned Judge presiding at the Sessions sentenced him to undergo rigorous imprisonment for a period of two years. This was on the 27 July 1925.

(3.) The present application was not presented to the learned Acting Chief Justice till the 16th February 1926. The question, therefore, arose whether, if the appeal itself had been presented on the 16 February 1926, it would have been within time. Learned Counsel, who appears in support of the application, suggests that the only matter for our determination at this stage is one under Section 449, Sub-clause 1(c) read with Section 443, Sub-clause 1(a) of the Criminal Procedure, for the determination of the status of the prisoner, and that the question of limitation does not arise on the present application. We are unable to agree with learned Counsel on this point, and we must examine the question whether the present application itself is on the facts of this case within time. An application such as the present one for the determination of the prisoner's status must necessarily precede an application for leave to appeal. There are, no doubt, three stages in cases of this description--(i) the question of the determination of the status of the prisoner, (ii) application for leave to appeal, and (iii) admission of the appeal itself. If, as will appear from the facts of this case, no application for leave to appeal can now be presented, inasmuch as the time to prefer an appeal has expired, the application for the determination of the prisoner's status so as to enable him to apply for leave to appeal must necessarily be out of time.