Rex v Singh (Criminal Appeal No. 31 of 1947) [1947] EACA 73 (1 January 1947)

## APPELLATE CRIMINAL

## Before Horne and BOURKE, JJ.

## REX, Respondent (Original Prosecutor)

v.

## CHANAN SINGH S/O INDER SINGH, Appellant (Original Accused) Criminal Appeal No. 31 of 1947

Criminal law—Receiving stolen property—S. 315 (1), P. C.—Sentence—Excessive.

An Indian first offender was convicted on two counts of receiving two stationary engines valued at Sh. 600 and Sh. 400 respectively contrary to section 315 (1), P. C., and was sentenced to consecutive terms of three years' imprisonment with hard labour on each count, the maximum sentence which the subordinate. court could pass. He appealed on the ground of severity of sentence.

Held (13-3-47).—The appellant being a first offender the sentences were excessive.

Appeal against sentence allowed, Sentences reduced to eighteen months' I. H. L. on each count.

Modera for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—This appeal has been confined to the question of sentence. The appellant was convicted on two counts of receiving two stationary engines valued at Sh. 600 and Sh. 400 respectively, contrary to section 315 (1) of the Penal Code. The case was tried summarily before the Court of the Resident Magistrate sitting at Nyeri. The appellant was sentenced to three years' imprisonment with hard labour on each count. In the absence of an order that such terms of imprisonment should be executed concurrently the total period of imprisonment amounts, having regard to section 38 of the Penal Code, to six years on a consecutive basis. The appellant is a first offender and the maximum term of imprisonment that can be inflicted in respect of any one offence by the subordinate court before which he was summarily tried is three years' imprisonment. It is evident that no margin is left when it comes to assessing imprisonment on a similar conviction in the case of a person who is not a first offender. We feel that among other factors some regard must be paid by a subordinate court to the extent of its jurisdiction when computing sentence. It is to be borne in mind that in such a case as this the prosecuting authorities, where they consider such the more suitable course, can always proceed by way of seeking a committal order for trial before the higher Court: while on that it is difficult to forbear from an expression of the view that it is surprising, and often regrettable having regard to what is frequently revealed to us when exercising jurisdiction in revision, that such a course is not more commonly taken where serious offences relating to property are alleged against persons having bad records for such offences. In the instant case of a first offender we are of opinion that the sentences are excessive and that a term of eighteen months' imprisonment on each of the two counts will meet the justice of the case. The sentences passed by the lower court are reduced accordingly.