Sentence to be passed by Appellate Court.

This is an appeal preferred by the State against the acquittal of the two accused by the learned Stationary Magistrate, Omalur, in C.C. No. 525 of 1952 on his file. The two accused were tried by the learned Magistrate for an offence under section 325, Indian Penal Code. The Police filed a charge-sheet against the two accused for the murder of one Velayudam who died as a result of injuries he received on 13th December, 1951. The case was taken as a Preliminary Register Case. Bur after evidence was let in, the learned Magistrate passed an order on 30th April, 1952, holding that only a prima facie case against the two accused under section 325, Indian Penal Code, was made out and discharged the accused of the offence of murder. A charge for an offence under section 32 5, Indian Penal Code, was framed against the accused and they were tried for that offence.

[After reviewing the facts and evidence in the case his Lordship concluded:-]

I therefore find both the accused guilty under section 325, Indian Penal Code.

As regards the sentence, the question is what sentence this Court can give in an appeal against acquittal, Under section 423(1)(a), Criminal Procedure Code, the Court hearing the appeal may find the accused guilty and ‘pass sentence according to Law’. What is meant by “passing sentence according to Law”? Does it mean any sentence within the sentence prescribed for the offence or is it restricted by the power of the trial Court? In my opinion the words “pass sentence according to Law” mean any sentence that could be given for the offence. In Muthiah Chettiv. Emperor1 interpreting section 106(3), Criminal Procedure Code, it has been held that power given to an appellate Court to make an order under this section (i.e.)section 106(3), Criminal Procedure Code, is not an unlimited power to make such an order in any circumstances, but is to be taken as giving the appellate Court power to do only that which the lower Court could and should have done, and therefore that the power of the Court to pass such an order is confined to cases where the conviction has been by a Court named in the section and in the circumstances required by the section. In this case, the words “sentence according to Law” mentioned in section 423(1) (a) have not come up for consideration. But the scope of section 106(3) is quite as wide as section 423(1) (a) and the analogy may perhaps hold good. The above observations were approved and followed in Mating E Maung v. The King2. The facts in the Rangoon case are these:-

A first Class Magistrate convicted the accused on two charges of cheating and sentenced to two years rigorous imprisonment on the first charge and to one year on the second charge, the sentences to run concurrently. In appeal the Sessions Judge held that the obtaining of the two sums forms part of the same transaction and that a single charge must have been framed. The sentence was therefore altered to one of six months rigorous imprisonment and a fine of Rs.3,000 in default three months rigorous imprisonment. In revision the High Court of Rangoon reduced the fine to Rs.1,000, holding that the power given to the appellate Court under section 423 is not an unlimited power but is to be taken as giving the appellate Court power to do only that which the Lower Court could and should have done. This again does not touch the point in question. In the above case section 423(1) (b), Criminal Procedure Code has come in for consideration and not (1) (a). The powers of an appellate Court in an appeal against a conviction were considered and they are certainly different in their scope from those of an appellate Court in an appeal against acquittal. The case in Ponnuswami Servai v. Emperor1 is also a case of an appeal against -conviction. It is of no assistance to the case under consideration.

In Emperor v. Abasali2 the High Court was dealing with an appeal against acquittal. The accused was convicted by the First Class Magistrate and sentenced to one y