HAZARA SINGH Vs. EMPEROR

JUDGEMENT

(1.) Criminal appeal No. 438 is by Hazara Singh. He is represented by Mr. Gopal Prasad. Criminal appeal No. 478 is an appeal from jail by Hazara Singh against the same conviction and also by Sardara Khan. Mr. Gopal Prasad, though briefed only on behalf of Hazara Singh, has very kindly put the cases for both persons before us.

(2.) Both are Punjabis, and have been convicted by Khan Bahadur Mohammad Ozair, a learned Magistrate at Manbhum specially empowered under the provisions of Section 30, Criminal P.C. They have been convicted in connection with a very daring dacoity, which took place on the night of the 9-9-1944, in the house of Abinash Chandra De (P.W. 1) at Chirkunda, which is situated only 200 yards from the Chirkunda police station. Both men have been convicted under Section 397, Indian Penal Code, which provides for a minimum penalty of seven years imprisonment, and have been sentenced to seven years transportation. The learned Magistrate has not explained why he imposed a sentence of seven years transportation rather than seven years rigorous imprisonment. No doubt, he could legally do so under Section 59, Indian Penal Code, but as it is well-known and must have been known to him that now-a-days convicts are no longer transported to the Andamans, his particular form of sentence seems quite without point.

(3.) It appears from the evidence, and the judgment of the learned Magistrate, that he had actually convicted the appellants for dacoity. Nevertheless, he does not refer to Section 395 in the charge or in his judgment. It seems necessary to draw his attention to the fact that Section 397 has reference not only to the offence of dacoity but also to the offence of robbery. Where it is proposed to use Section 397, therefore, either Section 395 or Section 392 should be definitely referred to in the charge, so that the accused persons may know exactly what they have to meet. Section 397 merely provides the minimum penalty, it does not prescribe the maximum, and in itself would not disclose to the accused person that the offence of dacoity is a much more serious offence than that of robbery.