1. Sayeed Khan accused was tried for an offence of criminal trespass under Section 447, Penal Code by the Magistrate Second Class, Sehore, but by the time the judgment, convicting and sentencing him to pay a fine of Rs. 50/-, was delivered, the Magistrate was invested with powers of a Magistrate First Class and the judgment was passed by him as such. Sayeed Khan went up in appeal to the District Magistrate against the conviction and the latter set aside it and the sentence and acquitted him.
2. The matter is now referred to this Court for orders. The parties to the case were noticed and only the complainant turned up. The point for determination is whether an appeal lay to the District Magistrate or to the Sessions Judge.
3. The relevant portion of Section 407, Criminal P. C. Is as follows:
Any person convicted on a trial held by any Magistrate of the Second or Third Class.... may appeal to the District Magistrate.
and the relevant portion of Section 413, Criminal P. C. is:
Notwithstanding anything herein before contained there shall be no appeal by a convicted person in cases in which....Magistrate of the First Class passes a sentence of fine not exceeding Rs. 50/- only.
4. As pointed out above, under Section 407 a person Convicted on trial by a Magistrate Second Class, may appeal to the District Magistrate. The question is whether the 'trial' in this case was by such Magistrate. The Magistrate in this case was of Second Class, but was invested with powers of a Magistrate First Class, by a Notification dated 17-3-1953. The record shows that the last witness for the defence was examined on 16-3-1953 as Magistrate Second Class, but arguments were heard on 21-3-1953 as Magistrate First Class and the judgment was delivered on 31-3-1953. It is thus clear that the last part of the trial was as Magistrate First Class and therefore an appeal, if any, lay to the Sessions Judge and not to the District Magistrate. The copy of the judgment filed with the appeal clearly shows that the judgment was by a Magistrate First Class and the District Magistrate seems to have failed to notice this fact which should have set him to examine and consider the question of the tenability of the appeal before him. It is obvious that the District Magistrate overlooked this fact nor was it brought to his notice.
5. In - 'Sheobhanjan Singh v. Emperor' AIR 1925 Pat 472 (A) some witnesses were examined before a Magistrate Second Class and some after he was invested with powers of First Class Magistrate. It was held that 'the appeal lay to the Sessions Judge.' It has been observed that:
It is not the conviction of a Second Class Magistrate, but the holding of a trial by such a Magistrate that determines the forum of the appeal.
In - 'Venkatareddi v. Ramayya' AIR 1928 Mad 55 (B) it is not clear how far the trial continued before the Magistrate Second Class and since when he was invested with the higher powers, but the case lays down that 'as the conviction was by the Magistrate First Class, an appeal lay to the Sessions Judge.' In - 'Jalal v. Emperor' AIR 1937 Sind 22 (C) it was held that
the Court to which an appeal lies is determined by the status of the Judge on the day on which he pronounces the judgment.
The case law cited was discussed and in that view the appeal in this case lay to the Sessions Judge. In - 'Bakshi Ram v. Emperor' AIR 1938 All 102 (D) it was observed that:
A trial does not include judgment as the conclusion of a trial takes place before the judgment is delivered.
In that case arguments were heard by the Court as an Assistant Sessions Judge, but the judgment was delivered as an Additional Sessions Judge. It was held that 'the appeal lay to the Sessions Judge and not to the High Court.' This case dissents from the decision in - AIR 1937 Sind 22 (C) 'ibid' and discusses the question at p. 105 with reference to Section 366, Criminal P. C, of 1898 to say that judgment follows termination of the trial as distinguished from the wording of Section 386, Criminal P. C. of 1882. Their Lordships further referred to Sub-section 4 of Section 497 of the Code of 1898 read with the amending Act of 1923 and also to Sections 268 and 309 of the present Criminal P. C. The dictum that followed was that 'the conclusion of a trial takes place before the judgment is delivered.' In the case on hand the last witness was examined by the Court as Magistrate 2nd Class but the arguments were heard as Magistrate 1st Class, & therefore a part of the trial was by the Court as Magistrate First Class. In my opinion, a trial terminates before judgment as shown by their Lordships in the above case, but only after arguments, if any, are heard. To be brief, hearing of arguments is a part of the trial. Therefore, in the case on hand, the appeal lay to the Sessions Judge.
6. The decision in - 'Deonandan Mahto v. Chalitar Mahton' AIR 1942 Pat 107 (E) relies on the - 'Allahabad Case (D)' 'ibid'. In that case the arguments were heard as Magistrate Second Class while the judgment was delivered as Magistrate First Class. It was held that 'the appeal lay to the Sessions Judge.' i.e. the view was that even when the whole trial including the arguments was before the Magistrate Second Class, yet an appeal lay to the Sessions Judge as the judgment was delivered as Magistrate First Class.
7. The decision in - 'Emperor v. Kisan Sakhararn' AIR 1943 Bom 94 (F) dissents from the decision in - AIR 1938 All 102 (D) 'ibid'. In this case the last witness was examined as Magistrate First Class and it was held that 'the appeal lay to the Sessions Judge.' The decisions in - AIR 1928 Mad 55 (B) and - AIR 1938 All 102 (D) 'ibid' were discussed.
8. In the case on hand, the arguments, which, in my opinion, formed part of the trial, having been heard by the Court as Magistrate First Class, the trial was by the latter and therefore, the appeal, if any, lay to the Sessions Judge. It would, however, appear that the sentence awarded to the accused was of a fine of Rs. 50/- only and no appeal in law was tenable.
9. The question, however, is whether the reference should be accepted and in my opinion, it should be so done. The case having come up to the notice of this Court, the record had to be examined, as the order of the District Magistrate was ultra vires and it was not proper to send back the appeal to the Sessions Judge to whom it could not lie.
10. On examination of the record it appears that the accused Sayeed Khan claimed the field, in which the trespass was said to have been committed, as an occupant on the basis of a sale from the original occupant Mst. Azimbi while the complainant Wahid Khan was her mere sub-tenant ('Shikmi' holder) for the previous year. The question, therefore, arises as to who was in possession and whether the accused claimed a bona fide right on his own behalf. That being so, it is obvious that the case was of a civil nature as observed by the District Magistrate and secondly the accused could not be held to have intention to commit an offence or to intimidate insult or annoy the complainant and in this view, no offence, under Section 447, Penal Code could be held to have been committed by him.
11. The reference is, therefore, accepted, but the accused is acquitted of the offence of which he was convicted by the Magistrate First Class and the sentence of fine is set aside.