ZAFAR HUSAIN Vs. EMPEROR

JUDGEMENT

(1.) THERE are two petitions in revision before me which have been heard together as directed by the learned Judge who admitted them. One of the petitions is on behalf of Tafazzul Husain, who was convicted in the Court of a First Class Magistrate on charges under Sections 147 and 325 of the Indian Penal Code. He was sentenced on each charge to imprisonment for six months and a direction was made that the sentences should run consecutively. The other applicants Zafar Husain, Niaz Husain and Rahmat Bakhsh alias Thamman were tried at the some trial, they were convicted under the some sections and each of them was sentenced to rigorous imprisonment for one year on each charge, the same directions being given regarding the order in which the sentences were to be served. The case came up in appeal before the learned Sessions Judge. He modified the order of the first Court by directing that the sentences should run concurrently and not consecutively. He also took advantage of the power conferred upon him by Section 106, Sub-Section 3, of the code of Criminal Procedure, and passed an order binding each of the accused over to keep the peace for a period of three years, The accused filed two petitions here and various grounds were set out in those petitions. The learned Judge, before whom they came for admission, however, directed that they should be admitted only on one ground, namely, that the order of the Sessions Judge amounted to an enhancement of the sentence passed by the Court of first instance. In his order allowing these applications to be admitted, the learned Judge refers to two cases, namely, Queen-Empress v. Ishri 17 A. 67 : A.W.N. (1894) 202 : 8 Ind. Dec. (N.S.) 368, and King-Emperor v. Sagwa 23 A. 497 : A.W.N. (1901) 176. Those case are not in point here. They were cases in which the Appellate Court reduced the term of imprisonment and imposed a fine. Here it cannot be argued that the learned Sessions Judge had no authority to make the order binding over these accused applicants to keep the peace for, as I have said, that is a power which is expressly conferred by Section 106, Sub-Section 3, of the Code of Criminal Procedure. It is impossible, therefore, to argue that this order of the Sessions Judge amounts to an enhancement of the sentence. If I were to hold so, then the result would be that the provisions of Section 106, Sub-Section 3, of the Code of Criminal Procedure, would be rendered nugatory. THERE is no force, therefore, in the contention that the order of the Court below is illegal because it amounts to an enhancement of the sentences of the first Court.

(2.) THE application, therefore, of all the accused-applicants is dismissed.