JAGADISH CHANDRA RAY Vs. KING-EMPEROR

JUDGEMENT

(1.) AT a preliminary hearing of this appeal, which was fixed for hearing the appellant only on the merits, it has come to my notice that the present appeal lay in the Court of the Sessions Judge, Nagpur, having regard to the provision contained in Section 408, Criminal P.C. The fact that concurrent sentence of one year has been passed against the present appellant under other provisions of the penal law, does not preclude the Sessions Court from dealing with the appeal: cf. Section 35, Sub-section 17 C.W.N. 72 Criminal P.C., and Abdul Jabbar v. King Emperor A.I.R. 1921 Cal. 152.

(2.) IT has been suggested before me that the fact that the Magistrate, in determining the length of the sentence took into account the length of time the appellant had been under trial might affect the question of what Court of appeal has jurisdiction in this case. am wholly unable to entertain this suggestion. This or any other appellate Court in such a matter is only concerned with the actual substantive sentence imposed, so far as the question of where the appeal lies is concerned. I am aware of the decisions in Bepin Behary De v. Emperor [1911] 15 C.W.N. 734 and Abdul Khalek v. King-Emperor [1913] 17 C.W.N. 72, but these decisions were dissented from in the latter case of 25 C.W.N. 613 quoted above, with which I respectfully agree, as also in Aziz Sheikh v. Emperor [1913] 40 Cal. 631. Tudbal, J., in Emperor v. Tulsi Ram [1913] 35 All. 154, took also a similar view, and there seems to me no doubt whatever that where the total term of imprisonment, to which an appellant has been sentenced either by an Assistant Sessions Judge or by a Section 30 Magistrate, does not exceed four years in the aggregate, the appeal undoubtedly lies to the Court of the Sessions Judge.