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1936 DIGILAW 89 (CAL)

Madan Mohan Roy v. Emperor

1936-02-19

body1936
JUDGMENT Cunliffe, J. - The Petitioner in this case was sentenced to rigorous imprisonment for one year under sec. 35 of the Bengal Suppression of Terrorist Outrages Act, 1932. He made an application before my brothers Lort-Williams and Jack, our predecessors in this Court, and obtained a Rule nisi upon the local District Magistrate to show cause why the sentence to which I have referred should not be reduced or modified in some way or another. Before us now Mr. Gupta appears on his behalf and asks for the Rule to be made absolute. The Bengal Suppression of Terrorist Outrages Act of 1932 must be read with a supplementary Act which contains various definitions and directions with regard to appeals and so on. Sec. 5 of the Supplementary Act is in these terms:-- Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law, there shall, save as provided in the Local Act, be no appeal from any order or sentence passed by a Special Magistrate under the local Act and save as aforesaid, no Court shall have authority to reviso such order or sentence, or to transfer any case from any such Magistrate or to make any order under sec. 491 of the Code. 2. The conviction, as I have already shown, was passed by a Special Magistrate under this local Act and the provisions of the supplementary Imperial Act have already been considered by my brothers Lort-Williams and Henderson in the case of Superintendent and Remembrancer of Legal Affairs, Bengal v. Lachmi Narayan Sarma 38 C.W.N. 107 (1933). In that case, the local Government endeavoured to appeal from an acquittal passed by a special power Magistrate appointed under the Terrorist Act and inspite of' the arguments for the Crown, it was held that an appeal was incompetent by reason of the very sec. 5 of the Imperial Act which I have just read. It is difficult to understand how this Rule nisi was ever issued; but faced with the difficulty, Mr. Gupta fell back on an application to amend his petition which was put forward in the regular way under sec. 439 of the Code, the section that deals with review applications, to an application under sec. 107 of the Government of India Act. Gupta fell back on an application to amend his petition which was put forward in the regular way under sec. 439 of the Code, the section that deals with review applications, to an application under sec. 107 of the Government of India Act. That section of the Act which refers to the powers of the High Courts is usually known as the superintendence section and Mr. Gupta contended that the right of the Indian Chartered High Courts under the section in question must extend to overriding the specific provisions of special legislation both, I suppose, local and Imperial, the argument being based upon the supposition that the section in giving the High Courts superintending power over the lower Courts or all Courts subordinate to its Appellate jurisdiction, embraced the reduction of decisions passed by special Magistrates when the statutory law specifically denies any redress from such decisions. It is to be noted that if such an interpretation could be placed 'upon sec. 107, it would certainly be invoked by the Crown against the subject. Indeed in the case in Superintendent and Remembrancer of Legal Affairs, Bengal v. Lachmi Narayan Sarma 38 C.W.N. 107 (1933) referred to above, it was the Crown that was endeavouring to appeal from an order of acquittal by the special Magistrate, although they did not go so far as to put their application in this form. We regret we are unable to accept Mr. Gupta's application for amendment. We think the consideration of any alteration in the sentence in this case is clearly illegal for the reasons I have set out in the judgment. Henderson, J. I agree. In view of the provisions of sec. 5 of Act XXIV of 1932 the Rule was incompetent and I am certainly not prepared to say that under the provisions of sec. 107 of the Government of India Act, we ought to interfere with what was admittedly a perfectly legal sentence.