1. The three accused were convicted by the First Class Magistrate of Bagevadi of an offence under Section 352, Indian Penal Code. Accused No. 1 was sentenced to pay a fine of Rs. 30. Accused Nos. 2 and 3 were ordered under Section 562, Criminal P.C. to enter into a bond of Rs. 50 each to appear and receive sentence when called upon during six months, and in the meantime to keep the peace and be of good behaviour.
2. All the three accused appealed to the Court of Session. As the sentence on Accused No. 2 was not originally appealable, it became appealable under Section 415A, Criminal P.C. if the order against Accused Nos. 2 and 3 was appealable. The Sessions Judge raised the following issue:
Does an appeal lie against the conviction under : Section 352, Indian Penal Code, and the order under Section 562, Criminal P.C., passed against Accused. Nos. 2 and 3?
3. He held that no appeal lay. He referred to Section 413, Criminal P.C. which states:
Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a Court of Session passes a sentence of imprisonment not exceeding one month only or in which a Court of Session or District Magistrate or other Magistrate of the First Glass passes a sentence of fine not exceeding fifty rupees only.
4. The learned Judge considered that it would be in the highest degree illogical that a sentence of security in Rs. 50 should be appealable when a substantive sentence of fine of Rs. 50 was not appealable. We are not concerned with the question whether the Acts of the Legislature are logical or not. We have only got to consider the proper construction to be put upon the relevant sections of the Criminal P.C. Section 408, Criminal P.C., states:
Any person convicted on a trial held by an Assistant Session Judge, a District Magistrate or other Magistrate of the First Glass, or any person fentenced under Section 319, or in respect of whom an order has been made or a sentence has been passed under Section 380 by a Magistrate of the First Glass, may appeal to the Court of Session.
5. Accused Nos. 2 and 3 had been convicted by the First Glass Magistrate. Accordingly, they might appeal to the Court of Session. But, if they had been sentenced to a fine not exceeding Rs. 50, their right of appeal would have been taken away by Section 413, Criminal P.C. They have not been sentenced to a fine at all. An order has been made against them that they should be released on their entering into a bond to be of good behaviour. We have been referred to the marginal note to Section 408, Criminal P.C. which is as follows:
Appeal from sentence of Assistant Sessions Judge or Magistrate of the First Class.
6. But a marginal note is not part of the section, and one cannot correct an obvious reading of the section by referring to the marginal note.
7. Ordinarily, then, the accused would be entitled to appeal against their conviction. In Bahadur Molla v. Ismail : AIR1925Cal329 , it was held that an appeal, lay under Sections 407 and 408, Criminal P.C. from an order passed under Section 562(1). We agree with that decision. We must remand the case to 'the Sessions Judge to hear the appeal.