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Kishori Singh and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1937Cal394
AppellantKishori Singh and anr.
RespondentEmperor
Excerpt:
- .....the second class, seeing that the sub-divisional magistrate to whom the proceedings were submitted passed sentence without taking further, evidence, the fact remains that the sentence was passed by a magistrate of the first class, and the case would consequently come within the express words of section 408, and an appeal, if it could be claimed at all, would be under this section and not under section 407. in any case, we do not see how it can escape the mischief of section 413 which in terms would apply. finally, we may state that mr. mukherjee also at tempted to bring the case under the proviso to section 413 which is embodied in section 415, but had to concede that there was no room for the application of this proviso. the result is that this rule is discharged.henderson, j.8. i agree.
Judgment:

Biswas, J.

1. The question in this Rule is whether an appeal to the Court of Sessions was barred under Section 413, Criminal P.C. The facts of the case may be briefly stated: The two petitioners were put upon their trial before a Sub-Deputy Magistrate of Howrah on charges of causing hurt under Section 323, I.P.C. The Sub. Deputy Magistrate was of opinion that the petitioners were guilty, and further, that they should be required to execute bonds under Section 106, Criminal P. C, but as being a Magistrate of the Second Class, he was not competent to make an order under this section, he dealt with the case under Section 349 of the Code, and submitted the proceedings to the Sub-divisional Magistrate who was a Magistrate of the First Class.

2. The Sub-divisional Magistrate did not find it necessary to take further evidence, and agreeing with the Sub.Deputy Magistrate, found the accused guilty under Section 323. I.P.C., and sentenced each of them to pay a fine of Rs. 25, in default to undergo rigorous imprisonment for six weeks, and also made an order under Section 106, Criminal P. C, requiring each to execute a bond for Rs. 100 with one surety of like amount to keep the peace for one year, in default to undergo simple imprisonment for the same period. Against this conviction and sentence, the petitioners appealed to the Court of Session, but the learned Additional Sessions Judge who heard the appeal dismissed it as incompetent. The present Rule is directed against this order of dismissal. It is well settled that the right of appeal is a creature of statute, and this is expressly recognized in the Code of Criminal Procedure in Section 404, which lays down that no appeal shall lie 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. It was therefore for the petitioners to show under which section of the Code or of any other law they claimed the right of appeal. The section of the Code on which they relied for the purpose was Section 408, which may be set out (omiting the proviso which is not relevant):

Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any person sentenced under Section 349 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 Class, may appeal to the Court of Session.

3. The petitioners are persons sentenced under Section 349 by a Magistrate of the First Class, and if Section 408 stood alone, they would as such undoubtedly have a right of appeal. The question however is as to the effect of Section 413, which provides as follows:

Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which 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 Rs. 50 only.

4. The present case is certainly one in which a Magistrate of the First Class has passed a sentence of fine not exceeding Rs. 50, and would obviously therefore come within the express terms of this section, and that being so, an appeal would of course be barred, Section 408 notwithstanding. Mr. Sudhansu Sekhar Mukherjee, appearing on behalf of the petitioners has however made an ingenious attempt to avoid this effect by referring to the wording of Section 408 as compared with that of Section 413. Before examining his argument, we might at once point out that the fact that the sentence of fine here was combined with an order under Section 106 of the Code would not affect the question of appealability at all. See Section 415, which expressly lays down that no sentence which would not otherwise be liable to appeal shall be appealable merely on the ground that the person convicted is ordered to find security to keep the peace. Nor would an order under Section 106 be appealable by itself. The question as to whether an appeal would lie would therefore have to be determined solely with reference to the sentence of fine which was passed in the case.

5. Now, as to this, Mr. Mukherjee's argument is as follows: He recognizes the force of the opening words of 8. 413, 'notwithstanding anything hereinbefore contained,' as apt enough to limit the right of appeal given by Section 408, but argues from a comparison of the language used in the two sections that the later section hits the earlier only partially, and not in its entirety, or to be more precise, that Section 413 takes away the right of appeal only in those cases which are referred to in the earlier part of Section 408, and not to cases under Section 349 or under Section 380. It is pointed out that Section 408 mentions the case in which an appeal is given in distinct categories. It first refers to any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, and then in a separate clause, to any person sentenced under Section 349, and then again, also separately, to any person in respect of whom an order has been made or a sentence has been passed under Section 380. There are thus three classes of cases, each described separately, which are made appealable by Section 408. Turning now to Section 413 which seeks to restrict the right of appeal in certain cases, it is argued that the words used are apposite only to the first category of cases mentioned in Section 408, cases under Section 349 or Section 380 not being mentioned at all. This shows, according to Mr. Mukherjee, that the right of appeal in cases dealt with under Section 349 or Section 380 is left unaffected.

6. Plausible as this argument may seem to be, we are wholly unable to accept it. We do not think it is possible to restrict the scope of Section 413 in the manner suggested. In construing the provisions of Section 413 it is no doubt permissible to refer to the words used in Section 408, but the language of 8. 413 is so clear, expressed as it is in general terms, that it would in our opinion be wholly wrong to try and limit it by reference to the wording of Section 408. Having regard to the form in which Section 408 is expressed, it is not difficult to see why cases under Section 349 or under Section 380 are separately mentioned in it. Ex hypothesi, in such cases the trial is held, partly, or it may be, wholly, by one Magistrate, and the sentence is passed by another Magistrate of a higher class, who may or may not take further evidence. The words used in the first part of Section 408 would therefore be hardly appropriate to cases of this description. It is not necessary to examine whether Section 408 might or might not have been expressed in a form which might make it correspond more closely to the wording of Section 413 or vice versa. Taking the words as they stand, the difference in form in which the two sections are expressed would not in our opinion justify any narrowing down of the plain meaning and effect of the words in Section 413. These words (and in the present case, we are concerned with the words in the last portion of the section) are clear enough and wide enough to include cases under Section 349 or Section 380, though these are not specifically and distinctly mentioned, as in 8. 408. What has to be seen, in considering whether a case is hit by Section 413, is whether the sentence in question was one not exceeding the limit prescribed, and whether it was a sentence passed by a Court of the class mentioned therein. If these conditions are satisfied, 8. 413 would apply, whether the sentence was passed under Section 319 or Section 380 or otherwise. We hold accordingly that the learned Additional Sessions Judge was right in the view he took, rejecting the appeal of the petitioners.

7. We may add that a faint attempt was made by Mr. Mukherjee at one stage to bring his case under Section 407 of the Code, suggesting that it was a case of a trial held by a Magistrate of the Second Class, being the Sub-Deputy Magistrate of Howrah before whom the prosecution had started, and that the petitioners had an absolute right of appeal under that section, and that this would not be affected at all by the provisions of 8. 413. We are not at all impressed by this argument. In the first place, Section 407 would give a right of appeal to the District Magistrate, and not to the Court of Session. Secondly, even if it be held that the trial here was held by a Magistrate of the Second Class, seeing that the Sub-divisional Magistrate to whom the proceedings were submitted passed sentence without taking further, evidence, the fact remains that the sentence was passed by a Magistrate of the First Class, and the case would consequently come within the express words of Section 408, and an appeal, if it could be claimed at all, would be under this section and not under Section 407. In any case, we do not see how it can escape the mischief of Section 413 which in terms would apply. Finally, we may state that Mr. Mukherjee also at tempted to bring the case under the proviso to Section 413 which is embodied in Section 415, but had to concede that there was no room for the application of this proviso. The result is that this Rule is discharged.

Henderson, J.

8. I agree.


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