Farkan and Others Vs Somsher Mahomed and Another

Banerjee and Sale, JJ.@mdashThis is a rule calling upon the Deputy Commissioner of Sylhet to show cause why his order dated 4th September 1894 should not be set aside and the appeal re-heard. The ground upon which we have been asked to interfere in this case is that the order complained of which is the judgment of the Deputy Commissioner on appeal from a judgment of the Deputy Magistrate does not comply with the requirements of Section 367 read with Section 424 of the Code of Criminal Procedure. The judgment is an extremely short one. It is in these terms: "After hearing the arguments of the pleaders for the appellants and examining the record, I am of opinion that the lower Court had ample ground for convicting the accused of rioting. I do not consider the sentence too severe." It does not, as Section 367, which is made applicable to appellate judgments by Section 424, requires, contain the point or points for determination, nor any explicit statement of the reasons for the decision on such point or points. It is argued by the learned Counsel for the petitioners that one of the questions that arises in the case is whether there was any common object by which the persons who are said to have composed the unlawful assembly were animated, and it is of importance in such cases always to see what the common object is in order to determine whether it is one of the objects which would make the assembly unlawful. Judgments very similar to the one now under revision have been considered by this Court to be insufficient under the law, and retrials have been ordered. [see the cases of (sic)din Dai v. Sonatun Mandal I.L.R.Cal. 449 and In the matter of the petition of Ram Das Maghi ILR 13 Cal. 110.] No doubt Section 537 of the Code of Criminal Procedure provides that no finding or sentence of a Court of competent jurisdiction shall be reversed on appeal or revision on account of any error, omission or irregularity in the judgment, unless such error, omission or irregularity has occasioned a failure of justice; but it is impossible to say that the error, omission or irregularity in the judgment in this case has not occasioned a failure of justice, when we do not know what finding the Lower Appellate Court would have arrived at upon the evidence with regard to the question of common object of the members of the unlawful assembly, and whether, if its attention had been directed to the determination of this question, it would or would not have found that there was a common object such as converted the assembly in this case into an unlawful assembly. Where the law allows an appeal, the appellant is entitled to have an explicit opinion from the Court of appeal that has to deal with them on the questions of fact involved in the case The case seems to us to be exactly similar to the two cases referred to above, and, following those two cases, we make the rule absolute, set aside the judgment of the Appellate Court and direct the appeal to be re-heard.