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Sheo NaraIn Tandon Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 88 of 1956
Judge
Reported inAIR1959All351; 1959CriLJ677
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 408 and 413; ;Uttar Pradesh First Offenders' Probation Act, 1938 - Sections 3
AppellantSheo NaraIn Tandon
RespondentThe State
Appellant AdvocateSri Shanker Sharma, Adv.
Respondent AdvocateP.N. Chaudhri, Adl. Govt. Adv.
Excerpt:
criminal - right of appeal - sections 408 and 413 of criminal procedure code, 1898 - right of appeal to the convicted person released on probation - places him in more favorable position than a convicted person sentenced to punishment within the limit of section 413. - - 4. (1) when any person is convicted of any offence not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing him at once.....r.n. gurtu, j.1. one sri s. n. tandon was prosecuted by the regional provident fund inspector, kanpur for contravening the provisions of section 38 (i) and (ii) and section 76 of the employees, provident fund scheme, 1952. he was found guilty of the offence charged. the learned city magistrate considered it appropriate to let him off with a warning.2. sri s. n. tandon then preferred an appeal to the learned sessions judge of lucknow. a preliminary objection was raised there that no appeal lay because the learned magistrate had not passed any sentence on the appellant. the learned sessions judge relying on the case of hari charan v. state, reported in : air1951all442 , held that no appeal lay under section 408, criminal procedure code. the appeal was, accordingly dismissed as being not.....
Judgment:

R.N. Gurtu, J.

1. One Sri S. N. Tandon was prosecuted by the Regional Provident Fund Inspector, Kanpur for contravening the provisions of Section 38 (i) and (ii) and Section 76 of the Employees, Provident Fund Scheme, 1952. He was found guilty of the offence charged. The learned City Magistrate considered it appropriate to let him off with a warning.

2. Sri S. N. Tandon then preferred an appeal to the learned Sessions Judge of Lucknow. A preliminary objection was raised there that no appeal lay because the learned Magistrate had not passed any sentence on the appellant. The learned Sessions Judge relying on the case of Hari Charan v. State, reported in : AIR1951All442 , held that no appeal lay under Section 408, Criminal Procedure Code. The appeal was, accordingly dismissed as being not maintainable.

3. Thereupon a criminal revision was filed in this court against the learned Sessions Judge's order upon the ground that the learned Sessions Judge had erred in holding that no appeal was maintainable. The revision came up before a Division Bench of this Court consisting of my brother, Mulla and brother Tandon, My brother, Mulla, was of the view that no appeal lay to the learned Sessions Judge because a mere order of admonition (actually the Magistrate used the word 'warning') amounts in effect, to a lesser sentence than that of a fine of Rs. 50/- and that, therefore, the provisions of Section 413 of the Criminal Procedure Code (hereinafter to be referred to as the 'Code') which related to appeals in petty cases applied and no appeal was, therefore, permissible. On the other hand, my brother, Tandon, was of the view that Section 413 did not cover the case, and Sri S. N. Tandon was entitled to prefer an appeal.

4. The question for determination, therefore is whether when an order of admonition is passed under the provisions of the U. P. First Offenders' Probation Act (hereinafter to be referred to as 'the Probation Act') No. VI of 1938 which have replaced the repealed Sections 561, 562, 563 and 564 of the Code a right to prefer an appeal exists under Section 408 of the said Code or not?

5. Turning first to Chapter XXXI of the Code, which is a Chapter dealing with appeals, one finds that by Section 404 thereof, it is enacted that:

'No appeal shall He from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force'.

Section 408 of the Code then provides that:

'Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under 15. 380 by any Magistrate, may appeal to the Court of Session.'

Thereafter Section 413 provides as follows:

'Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a High Court passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or in a Court of Sessions 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 class passes a sentence of fine not exceeding fifty rupees only.'

Section 415-A of the Code then provides as under:

'Notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any of such persons, all or any of the persons convicted atsuch trial shall have a right of appeal.'

.Inasmuch as Section 408 of the Code refers to Sections 349and 380 it is necessary to quote these two sections also.

6. Now Section 349 enacts as follows:

'(1) Whenever a Magistrate of the second or third class, having jurisdiction, is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or that he ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the District Magistrate or Sub-Divisional Magistrate to whom he is subordinate.

(1-A) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under Sub-section (1) in regard to any of such accused he shall forward all me accused who are in his opinion guilty to the District Magistrate or Sub-Divisional Magistrate.

(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law:

Provided that he shall not inflict a punishment more severe than he is empowered to inflict under Sections 32 and 33'.

7. Section 380 of the Code then enacts as follows:

'Where proceedings are submitted to a Magistrate of the first class or a Sub-Divisional Magistrate as provided by Section 562, such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.'

It is now necessary to refer to Section 562 of the Code. That section runs as under:

'(1) When any person not under twenty-one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or (imprisonment for life), and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour :

Provided that where any first offender is convicted by a Magistrate of the third class, or a Magistrate of the second class not specially empowered by the (State Government) in this behalf, and the Magistrate is of opinion that the powers conferred by this section should be exercised he shall record his opinion to that effect, and submit the proceedings to a Magistrate, of the first class or Sub-Divisional Magistrate, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in manner provided by Section 380, (1-A). In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years' imprisonment and no previous conviction is proved against him, the Court before whom he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment release him after due admonition).

(2) An order under this section may be made by any Appellate Court or by the High Court when exercising its power of revision.

(3) When an order has been made under this section in respect of any offender, the High Court, may on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law.

Provided that the High Court shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(4) The provisions of Sections 122, 126-A and 406-A shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.'

8. It has already been pointed out that this section stands repealed by the Probation Act. The Probation Act, by Section 3 thereof, provides that:

'In any case in which a person is found guilty of the offence of theft, dishonest misappropriation, or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two years' imprisonment and no previous conviction is proved against him, the court by which he is found guilty may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender, and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.'

Section 4 of the Probation Act enacts that:

'4. (1) When any person is convicted of any offence not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years as the Court may direct and in the meantime to keep the peace and be of good behaviour.

Provided that the court shall not direct the release of an offender under this section unless it is satisfied that offender, or his surety, has a fixed place df abode and regular occupation in the place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions:

Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the Provincial Government, which is punishable with imprisonment not exceeding six months, the court shall take action under this section, unless, for special reasons to be recorded in writing, it does not consider it proper to do so. (2) Where the offender ordered to be released under Sub-section (1) is under twenty-four years of age, the court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order:

Provided that the period so specified shall not extend beyond the date on which, in the opinion of the court, the offender will attain the age of twenty-five years, (3) A Court making an order under Sub-section (2) shall require the offender, before he is released, to enter into a bond, with or without sureties to observe the conditions with respect to residence, abstention from intoxicants and any other matters as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(4) A Court making an order under Sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.'

Section 6 of the said Act then provides as follows:

'(1) An order under Section 3 or Section 4 may be made by an appellate court or by the High Court when exercising its powers of revision.

(2) When an order has been made under Sections 3, 4 or 5 of this Act in respect of an offender, the High Court may on appeal, when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order and, in lieu thereof, pass sentence on such offender according to law. Provided that it shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.'

It will be observed that Sections 3 and 4 of this Probation Act cover the same ground as Section 562 of the Code.

9. It is evident from a reading of Section 413 of the Code that it does not deal with a case where an admonition has been given or a release has been ordered in terms of Section 562 of the Code now replaced by the relevant sections of the Probation Act. Therefore it would appear that the right given by Section 408 of the Code to persons convicted has not been, in express terms, cut down by Section 413 thereof.

Therefore, unless it can be held that an ad-monition amounts to the imposition of a fine or a sentence within the maximum limit indicated in Section 413, in a case where there has been a conviction followed by an admonition, Section 413 would not be attracted. Obviously an admonition or a release on probation of good conduct cannot be equated to a sentence.

When a person is released on probation of good conduct he is only released after a conviction and no sentence is, in the first instance, imposed upon him, but there is a liability upon him to appear and receive sentence when called upon during the period of his probation, nor can an admonition be said to be a fine or in the nature of a fine.

When an accused is sentenced to a fine there is a liability on him to pay the amount of the fine and that amount of fine is recoverable also from his property, if the fine is not paid by the accused. In the case of an admonition, a convicted person is under no liability to pay any amount. As soon as he has received the admonition there is an end of the matter.

10. Section 53 of the Indian Penal Code categorises the punishments, to which offenders are liable under the provisions of the Code. The fourth category enumerated is imprisonment which is defined to be of two descriptions namely-- (1) rigorous and (2) simple. The sixth category of punishment under Section 53 is fine. Admonition or release on probation of good conduct is not considered to be a mode of punishment, so far as Section 53 of the Code is concerned.

Therefore, prima facie admonition or release on probation cannot be equated with a sentenee of imprisonment or a sentence of fine for these two latter amount to punishment as defined in the Indian Penal Code, whereas admonition and release on probation do not come within the definition of 'punishment'.

11. No doubt, the marginal note of Section 413 of the Code is 'No appeal in petty cases', but a marginal note does not affect an alteration in the language of a section and is not to be looked at unless there is some ambiguity in the section itself. There is no ambiguity at all about Section 413. Moreover, it is not quite clear as to what is meant when the marginal note says 'No appeal in petty cases'. Having regard to the language of the section 'petty cases' would mean the cases wherein a petty sentence of imprisonment or fine has been passed.

A petty case does not necessarily mean a case which is of a petty nature, using the word 'petty' in the sense of 'not serious'. The word 'petty' obviously has reference to the shortness of the sentence of imprisonment or of smallness of fine. The marginal note, to my mind, cannot be used for the purpose of expanding Section 413 of the Code so as to bring within its ambit cases of conviction in which only an admonition has been administered or in which, in the first instance, the accused has been released on probation of good conduct.

12. The language of Section 408 of the Code does not put any restriction on the filing of an appeal by a person convicted but released after an admonition or on probation of good conduct,

13. The right of appeal granted by a statutory enactment should not be cut down unless the statute itself clearly cuts down the general provision granting the right. Section 408 of the Code clearly grants a right of appeal to any person convicted, as indicated therein, and also grants the said right to persons sentenced under Section 349 of the Code or in respect of whom an order has been made or a sentence has been passed under Section 380 of the Code by any Magistrate.

It cannot be denied that release on probation of good conduct or an admonition has to be preceded by a conviction. Inasmuch as there is also a conviction recorded before an order of admonition and release on probation of good conduct is passed, Section 408 is attracted at once. It is to be noted that an order or a sentence which has been passed under Section 380 is appealable under Section 408. An order under Section 330 may be such an order as is contemplated by Section 562 and this would include an order of admonition.

14. No doubt giving a person, who after conviction has been given merely an admonition or has been released on probation of good conduct, the right to appeal puts such person in a more favourable position than these to whom Section 413 has been made applicable. It may seem incongruous and unjust that a person who has been convicted and sentenced, even though to a small fine and to a small term of imprisonment, should, if that imprisonment of fine falls within the particular limits of Section 413 be prevented from filing an appeal, whereas a person, who has been admonished or bound down on probation of good conduct, should have the right of appeal.

But that may be a reason for seeking a repeal of Section 413. It may be that Section 413 could be attacked because it denies equality of equal protection of the law, but from that it does not follow that the right of appeal, which is not denied to persons who have been admonished after conviction or who have been released on probation of good conduct, should be cut down in order that they may not be placed in a more favourable position than the person whose case, according to the marginal note of Section 413, is deemed to be 'petty case'.

15. It is to be kept in mind that a conviction (independent of the punishment imposed after conviction) by itself, may have serious consequences. A conviction places a stigma on the persons convicted and sometimes a conviction does away with the necessity of a further enquiry when a convicted person has to be dealt with departmentally, in case such convicted person is Government employee. A conviction may stand in the way of the prospects of a convicted person.

A conviction may also lead to a heavier sentence being passed if the convicted person commits a second offence. Therefore, apart from the minimum penalty imposed by the court following, a conviction there are penal and evil consequences ensuing from a conviction. It is for this reason that the Code allows an appeal on a question of fact under Section 408 of the Code.

If it is possible to preserve that right to a category of convicted persons who have been only admonished or released on probation of good conduct that right should not be denied to them merely because the Legislature has chosen to deny the same right to persons in whose case Section 413 of the Code is attracted. One is not concerned with the policy of the law, but it may be pointed out that the only aspect of the matter which seems to have been kept in mind when enacting Section 413 is the smallness of the pecuniary loss which a convicted person will suffer when he has to pay a fine or the smallness of the duration of the loss of liberty of a convicted person in a case where he has been sentenced.

It may be that the loss of liberty and the pecuniary loss following upon a conviction may be small but the consequences of conviction may in other ways be severely penal and evil from the point of view of the convicted person. Nonetheless, if the Legislature chooses to put the class of convicted persons indicated in Section 413 in a separate category, the limitation imposed upon them in respect of the right of appeal will have to stand unless the section is repealed or held ultra vires the Constitution.

On the latter point it is naturally not for me to express any opinion but I do wish to say that in not limiting the right of appeal, where a right of appeal is not clearly denied to persons convicted and admonished or bound over on probation of good conduct, I am taking up a position in the interest of accused persons generally and from the point of view of accused persons it is a position which tends to favour them and to protect them from the hazard of a single person's judgment on facts.

16. Having discussed the matter in the light of the various sections, I will now proceed to consider the cases which bear upon this point.

17. In Mayandi Nadar v. Pala Kudumban, ILR 58 Mad 517: (AIR 1935 Mad 157), two of the accused were released after due admonition under Sub-section (1A) of Section 562. The third accused was of a mature age and received a fine of Rs. 25/-. The fourth accused was a youth aged seventeen and he was released under Section 562 (1) on entering into a bond with one surety. The accused two to four preferred an appeal to the learned Sessions Judge,

The learned Sessions Judge held that the release after admonition of the second accused was illegal because Sub-section (1A) did not apply to a case of house breaking and further, that the sentence of fine alone imposed upon the third accused was illegal because Section 457, Indian Penal Code, made a sentence of imprisonment, with or without fine compulsory. In the result, he set aside the order of the court below thereby acquitting the accused and left the matter there considering the case to be not of sufficient gravity to merit further action.

18. A criminal revision was filed in the High Court of Madras to revise the judgment of the Sessions Judge and the argument in the High Court was that no appeal lay from the order, of the Magistrate to the Sessions Judge. One of the questions considered by the High Court was whether an order under Section 562 was appealable because if it was, the other persons convicted at the trial would have a right of appeal under Section 415A of the Code.

The argument apparently addressed was to the effect that the word 'convicted' used in Section 408 meant a sentence and inasmuch as in an order under Section 562 (in the first instance) no sentence was passed, therefore, no appeal lay to the Sessions Judge. Their Lordships dealt with the argument and observed as follows;

'The petitioner's learned Advocate has endeavoured to create a doubt as to the meaning of the word 'conviction' by referring to certain English cases, but they do not support him in his main contention. In Burgess v. Boetefeur, (1844) 7 Man and G 481 certain persons had pleaded guilty to keeping a disorderly house. The judgment was respited that the nuisances might in the meantime be abated, and this having been done, the parties were afterwards brought up for judgment, when they were each fined one shilling and discharged. The question was whether the conviction took place when the defendants pleaded guilty or when they were brought up and received sentence.

Tindal C. J., observed that the word 'conviction' was undoubtedly verbum acquivocum being sometimes used as meaning the verdict of a jury and at other times in its more strictly legal sense for the sentence of the Court. But he decided that in the cases before him it must mean the judgment of the Court. We propose no other meaning here. Another case under the same statute was Jephson v. Barker and Redman, (1886) 3 TLR 40.

There the defendant pleaded guilty and was ordered to enter into his recognizances to come up for judgment when called on. Stephen J., held there had been a judgment, that is to say; 'There had been an order of the Court that the prisoner should enter into his recognizance to come up for judgment if called upon.'

This case, as Mr. Jayarama Ayyar has to admit, is directly against him. In the third case, Hartley v. Hindmarsh, (1866) 1 CP 553, it was held that there was no conviction as the order passed was not an adjudication upon the case.'

Their Lordships then referred to certain cases of the other High Courts and ultimately held that an appeal lay to the Sessions Judge from the orders passed under Section 562 and also therefore, by force of Section 415A, from the sentence imposed under Section 457, Indian Penal Code. They, therefore, refused to interfere with the judgment of the learned Sessions Judge and the revision petition was dismissed.

18a. The difficulty in reading the word 'conviction' as 'sentence' is obvious. The word 'conviction' has been used throughout the Code and it is obviously necessary to give it one meaning. Now if the word 'conviction' was given a meaning either of 'sentence' or conviction and 'sentence' it would make it impossible to apply Section 403, which is the section preventing a subsequent trial of persons previously acquitted or convicted, to a class of cases where no sentence has been imposed, but merely an admonition has been given or where there has been a release on probation of good conduct. In my view, the word 'conviction' in Section 408 cannot be read as 'sentence'.

19. In Bahadur Molla v. Ismail : AIR1925Cal329 , it was clearly indicated that an appeal lies under Sections 407 and 408 of the Criminal P. C., from an order passed under Section 562 (1). It was laid down that the restrictions in Sections 413, 414 and 415 do not apply to such orders.

After pointing out that a solution of the question whether an appeal lay from an order passed under Section 562 (1) aid not appear to be altogether free from difficulty. Mr. Justice Mukerji pointed out that no provision as to appeal has been expressly made in respect of an order under Section 562 and said that Section 404 expressly laid down that no appeal lies from any judgment or order of a criminal court except as provided for by the Code or by any other law for the time being in force. He then turned to Section 408 and pointed out that:--

'It gives a right of appeal to a person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or a Magistrate of the first class, and from a sentence passed under Section 349 by a Magistrate of the first class or an order (which is not a sentence) passed by a Magistrate of the first class under Section 380 of the Criminal Procedure Code.'

Mr. Justice Mukherji then indicated that such an order might include an order under Section 562 (1) and was of the view that the rights conferred by Sections 407 and 408 are only restricted by the reservations contained in Sections 412, 413 and 414, and subject to the provisions of Section 415, which is a proviso to Sections 413 and 414. Mukerji, J. then realised that the interpretation put by him would lead to certain anomalies and observed as follows : --

'If this interpretation is adopted a person against whom an order under Section 562, Clause (1), has been passed will have one appeal in the first instance, and possibly a second one when an order is passed sentencing him under Section 563, Clause (2). What effect the dismissal of the first appeal, or the non-preferring of it within time, will have on the second one is not a matter which I need discuss here. According to this interpretation also there would be no appeals in certain petty cases such as these mentioned in Section 413, or summary convictions such as are mentioned in Section 414, while in cases where there are no sentences at all, but only an order under Section 562, Clause (1), appeals will lie. This result, in view of the policy of Sections 413 and 414 seems somewhat strange'.

The learned Judge, however, pointed out that : --

'The statutory deprivation of a general right of appeal, however, must always be construed strictly.'

Although this case deals with an order under Section 562 (1), the reasoning equally applies to an order under Section 562 (1A) because there also there is a conviction and the admonition would appear to be a less serious punishment than a fine or a mere term of imprisonment. The fact that in the present case it is not Section 562 (1A) but Section 3 of the Probation Act which has been applied makes no difference, so far as the reasonings are concerned.

20. In Madhav Raghvendra Kulkarni v. Emperor : AIR1926Bom382 , it was once again held that an appeal lies under Section 408, Criminal Procedure Code from an order passed under Section 562 (1). In that case the Bench was referred to the marginal note of Section 408 and it pointed out that a marginal note is not part of the section and that one cannot correct an obvious reading of the section by referring to the marginal note and, therefore, was of the opinion that the accused would be entitled to appeal against the conviction in a case where he has been bound over for good behaviour under Section 562.

It was also urged before the Bench that it would be in the highest degree illogical that a sentence of security in Rs. 50/- should be appealable, while a substantive sentence of fine of Rs. 50/- was not appealable. The learned judges remarked that : --

'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.'

They interpreted Section 408 of the Code and held that an appeal was competent. The judgment aforesaid was given with reference to the Code, as it stood then, but no such change has been effected in the relevant section of the Code to destroy the logic behind these reasonings.

21. In Emperor v. Hira Lal, ILR 46 All 828 : (AIR 1924 All 765), Mr. Justice Boys held that an appeal will lie to the Sessions Judge from an order of a Magistrate under Section 562 of the Code of Criminal Procedure. That was an application in revision against an order of the Sessions Judge refusing to hear the appeal of one Hira Lal against whom an order in a summary trial had been passed under Section 562 of the Code of Criminal Procedure, the refusal being based on Section 414 of the Code, which he held barred the right of appeal The learned Judge referred to Sections 408 and 410 and said that : --

'If these two sections are uncontrolled, there can be no question that an appeal lies under them from orders under Section 562 by a Magistrate or by the Sessions Judge respectively.'

The case of the Crown was that as the appeal was a summary trial, an appeal was barred by Section 414; the argument being that as there was no sentence at all, it must be held to be a sentence less than the maximum which was referred to in Section 414. The learned judge said that in order to support the exclusion of a right of appeal, it will have to be argued that 'no sentence' would be held to mean the same thing as a sentence of less than the maximum.

He said that it was impossible to hold that this was a permissible meaning to give to the plain language of Section 414. He pointed out that Section 414 used the words 'passes a sentence' and if there was no sentence then Section 414 did not or could not operate as a bar. He rejected the contention that an order under Section 562 amounts to a sentence. He points out that a person might conceivably consider an order binding him over to be a more severe form of punishment than a small fine or a sentence of imprisonment for a short duration and he thought that that was why the Legislature did not apply the restrictions to Section 414. The reasoning behind this judgment is not specifically confined to Section 414 but the argument applies with equal force to Section 413.

22. In Ma Chit Su v. Emperor, 4 Ind Cas 1027 (Low Bur), it was again held that where a person had been released on probation of good conduct under Section 562, he could prefer an appeal under Section 408 and that the appeal was not hit by Sections 412, 413 and 414.

23. It will thus be observed that the general trend of authority is in the direction of permitting a person who has been released on probation of good conduct or released after admonition to appeal under Section 408 of the Code. The decision in : AIR1951All442 , to my mind and with respect, is not good law. There is an Oudh Case, S. M. Chopra v. S. A. Hamid, reported in AIR 1945 Oudh 59, which also supports the view that an appeal will lie in the circumstances mentioned.

24. My view, therefore, is that in a case where there has been a conviction followed by an admonition under Section 3 of the Probation Act, an appeal would lie under Section 408 of the Code and that such an appeal is not shut out by the provisions of Section 413 of the Code. By coming to this conclusion, I give to a convicted person the right of appeal and thereby support a position which is favourable to the convict. That a certain category of convicted persons is deprived of a right of appeal on facts because of Section 413 of the Code may be regrettable but that is the wish of the Legislature and nothing more can be done about it, until the restrictions are repealed or held void.

25. Let this answer be returned to the Bench concerned.


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