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Md. Safi Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberAppln. in Cr. Rev. No. 736 of 1953
Judge
Reported inAIR1954Cal301,58CWN189
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 35(3), 362(3) and 411; ;General Clauses Act, 1897 - Section 13; ;Indian Penal Code (IPC) - Sections 323 and 354
AppellantMd. Safi
RespondentThe State
Appellant AdvocateNalin Chandra Banerjee and ;Arun Kumar Dutt, Advs.
Respondent AdvocateJ.M. Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredSuknandan Singh v. Emperor
Excerpt:
- .....convicted on a trial held by a presidency magistrate may appeal to the high court' confers a general right of appeal on any person convicted by a presidency magistrate. then what follows merely limits the general power conferred. he further argues that the limiting clause has to be construed very strictly and his contention is that when the limiting clause speaks of imprisonment for a term exceeding six months or a fine exceeding two hundred rupees, it means that wherever there is an imprisonment for two terms although the two terms may not aggregate more than six months or where there is a combination of two sentences namely of imprisonment and fine the limitation imposed on the general power contained in the first part of the section does not exist and therefore there is no bar.....
Judgment:

Guha Ray, J.

1. The short point in this application for admission of an appeal which was heard after notice to the State is whether an appeal lies at all The applicant Md. Safi was convicted by a Presidency Magistrate under Section 323, Penal Code and sentenced to rigorous imprisonment for one month on that count. He was further convicted under Section 354, Penal Code and sentenced to rigorous imprisonment for one month and to a fine of Rs. 50/- or in default to rigorous imprisonment for two weeks more. The sentences of imprisonment on the two counts were to run concurrently.

2. The only section which provides for a right of appeal from convictions and sentences by Presidency Magistrates is Section 411, Criminal P. C. It runs as follows:

'Any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court, if the Magistrate has sentenced him to imprisonment for a term exceeding six months or to fine exceeding two hundred rupees.'

Mr. Banerjee on behalf of the applicant argues that the first part of this section, that is, the main sentence 'Any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court' confers a general right of appeal on any person convicted by a Presidency Magistrate. Then what follows merely limits the general power conferred. He further argues that the limiting clause has to be construed very strictly and his contention is that when the limiting clause speaks of imprisonment for a term exceeding six months or a fine exceeding two hundred rupees, it means that wherever there is an imprisonment for two terms although the two terms may not aggregate more than six months or where there is a combination of two sentences namely of imprisonment and fine the limitation imposed on the general power contained in the first part of the section does not exist and therefore there is no bar to an appeal in those circumstances.

3. In this connection it is necessary to see what the scheme of the Code of Criminal Procedure is with regard to rights of appeal from convictions by different classes of Magistrates. Mr. Banerjee on behalf of the State points out that under Section 6, Criminal P. C. Presidency Magistrates have been treated as a different class of Magistrates altogether. Now, as regards the convictions by Magistrates of first class who are not at the same time Presidency Magistrates, Section 408, Criminal P. C. confers a general right of appeal on any person convicted on a trial held by such Magistrates. This section not merely confers the general right of appeal but also determines the forum of that appeal. Then Ss. 412 to 414, Criminal P. C. are the exceptions to this general right of appeal. Section 415 of the Code again is a proviso to Ss. 413 and 414.

As regards appeals, from convictions by Presidency Magistrates, as already pointed out, the entire right of appeal is conferred by Section 411 and if there is any limitation on the right of such appeals, the limitations and the general power are contained in the same section, which clearly consists of only one complex sentence. It is noticeable that as regards appeals from convictions by Presidency Magistrates the Code follows a different line from what it does as regards appeals from convictions by Magistrates other than Presidency Magistrates. This difference of treatment cannot but be held to be deliberate.

4. Where the Code confers the general right of appeal and then imposes certain limitations on that right, the limitations of course have got to be strictly interpreted. Where, however, it is not so the only question is whether on the terms of the section which creates the right of appeal, interpreted in its strict grammatical sense there is a right of appeal. Now, reading Section 411 as a whole we find it impossible to accept the interpretation which Mr. Banerjee would have us put on it. This section as is quite clear, contains two clauses. The subordinate clause beginning with 'if the Magistrate' and ending with 'two hundred rupees' obviously lays down the conditions when there will be a right of appeal from convictions by a Presidency Magistrate. It does not appeal to us to be correct to say that the first part of the section gives a general right of appeal and then the second part contains the limitations on that general power. If that were so, one would have expected the section to be expressed in different terms.

5. Mr. Banerjee has laid a good deal of stress on the expression 'for a term, exceeding six months' and 'to fine exceeding two hundred rupees' and he argues that according to Section 35 (3), Criminal P. C. where there are two consecutive terms of imprisonment, the aggregate of the consecutive sentences in case of convictions for several offences at one trial shall be deemed to be a single sentence. He has also drawn our attention to Section 362 (3), Criminal P. C. which provides that sentences, unless they are sentences of imprisonment ordered to run concurrently, passed under Section 35 of the Code on the same occasion shall for the purposes of this section be considered as one sentence. Section 362 provides for the record of evidence in the Courts of Presidency Magistrates. Section 35 (3) and Section 362 (3) do not take one very much further than what the actual words used in Section 411 except to this extent that where two sentences of imprisonment are passed on two different counts in the same trial it is the aggregate of the sentences which count for the purpose of appeal; in other words, it is this aggregate which will determine whether an appeal will lie or not.

Quite apart from this section, a term might well be held to mean two or more terms under Section 13 of the General Clauses Act so that unless the aggregate of imprisonment inflicted exceeds six months no appeal will lie under this section. Similarly, unless the aggregate of fine imposed under two sections exceeds two hundred rupees, no appeal will lie. The conditions, therefore, that are imposed by Section 411 before there is a right of appeal are either that the term of imprisonment which means the total period of imprisonment, exceeds six months or if the fine, which means the total fine imposed, exceeds two hundred rupees; it is only when either of these conditions is fulfilled that there will be a right of appeal.

6. A large number of decisions was referred to us by Mr. Banerjee on behalf of the State. But most of these refer to Ss. 408, 412, 413, 414 and 415 of the Code with which really Section 411 has nothing in common. Only one decision is to the point and that is the case of -- 'Suknandan Singh v. Emperor', 17 Cal LJ 392 (A) in which there were two sentences each of six months' imprisonment passed simultaneously under Section 35, Criminal P. C. and directed to run concurrently. It was held in that case that when two sentences of this description are concurrent, they cannot be held to be in the aggregate a single sentence of one year's imprisonment and the word 'aggregate' in Sub-section (3) of Section 35 of the Code connotes the combined effect of the different sentences passed; and If two concurrent sentences could properly be said to be aggregated in the sense of being merged together, the result of the so-called aggregation would be a single sentence of six months' imprisonment. Then their Lordships go on to observe as follows:

'The intention (which is to be gathered from for example, Section 411 of the Code) is that a person who is to suffer by being imprisoned for more than a certain period shall have the privilege of an appeal. If he is, in fact, to be imprisoned for a shorter period, whether under one or two sentences, we do not understand how the privilege can, or why it should, be extended to him.'

We respectfully agree with this view. We are, therefore, of opinion that Section 411, Criminal P. C. properly construed does not confer a right of appeal in such a case and that it confers only a conditional right of appeal, so that the right accrues only if the one or the other of the two conditions is satisfied.

7. The application must accordingly stand dismissed.

Mitter, J.

8. I agree.


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