1. In this case the accused has been convicted of theft under Section 379, Indian Penal Code. He was put on his trial before a Magistrate, who was then a Second Class Magistrate, and he framed a charge against the accused under Section 3/9. Subsequently, before the trial had concluded, he was given First Class Magisterial powers, and judgment was delivered by him as a First Class Magistrate. He sentenced the accused to pay a fine of Rs. 31 or in default to suffer a month's rigorous imprisonment. The accused appealed to the District Magistrate. The latter is doubtful whether an appeal lies to him or to the Sessions Judge and has accordingly referred this question for decision.
2. Mr. Dhruv for the accused contends that the appeal lies to the District Magistrate. The Government Pleader does not appear.
3. The question depends upon the meaning of the words 'Any person convicted on a trial held by any Magistrate of the second or third class' in Section 407, and the words, 'Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the first class' in Section 408 of the Criminal Procedure Code. It is, no doubt, a point on which opinions might vary. But, I think, that, as a substantial part of the trial was held by the Magistrate, when he was a Magistrate of the First Class, it would be straining the language of Section 408 to hold that the case does not fall under the provisions of that section. This view is certainly supported by the fact that, before this section contained any reference to a 380, this Court in Emperor v. Bhimappa : AIR1915Bom268 . held that where a Second Class Magistrate submitted a ease to a First Class Magistrate in order that the accused might be dealt with under the provisions of Section 562 of the Criminal Procedure Code and the latter Magistrate acting under Section 380 convicted the accused and sentenced him, an appeal lay to the Court of Session. The reason given was that, as the sentence was passed by the First Class Magistrate under Section 380, there was what practically amounted to a trial before him. That view has been adopted by the legislature which amended Section 408 in 1923 so as to give effect to that ruling. That seems to show that the legislature contemplated that, though even part of the trial is only before a First Class Magistrate, still the case should be deemed to fall under Section 408 of the Code.
4. It is contended against this view that the Second Class Magistrate, before he framed a charge against the accused, had to consider whether he could appropriately pass a sufficient sentence upon him, and that therefore the subsequent proceedings really were only before him as a Second Class Magistrate, although his powers were subsequently enhanced. That, however, seems to me opposed to the fact that a case which is dealt with under Section 380 is covered by Section 408, because, that also is a case where the main trial is actually held by a Second or Third Class Magistrate. Therefore, I think the balance of argument is in favour of the view that the case falls under Section 408. No doubt, this view is rather unfortunate for the accused, because the fine being below Rs. 50 no appeal can be made to the Sessions Court, whereas if the case is held to fall under Section 407, he could appeal to the District Magistrate. But that is no sufficient reason for departing from what seems the correct law. I would, therefore, answer the reference by saying that an appeal in this case does not lie to the District Magistrate and that the case falls under Section 408 of the Code. This, of course, is without prejudice to any right that the District Magistrate has under the Code to report the case for the exercise of this Court's revisional powers.
5. I agree.