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Bahadur Molla and ors. Vs. Ismail and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1925Cal329
AppellantBahadur Molla and ors.
Respondentismail and anr.
Cases ReferredEmperor v. Ghasite
Excerpt:
- .....cases to which i have already referred are the decisions of high courts within the meaning of the code of criminal procedure. they are decisions of superior courts in this country and the legislature must be presumed to have been aware of their existence when they proceeded to amend the code. if with the knowledge of these decisions they only amended chapter xxxi in this respect not by making any reference to section 562 at all, but on the other hand by introducing into sections 407 and 408 the words, ' or in respect of whom an order has been made or a sentence passed under section 380'-the words, the omission of which from the code of 1898 was commented on in one of the cases referred to above-the conclusion irresistibly follows that they never intended to make a change in the law by.....
Judgment:

Mukerji, J.

1. The question involved in this Rule is whether a convicted per-son has a right of appeal, generally speaking, from an order passed against him under Section 562, Criminal Procedure Code.

2. As far as we have been able to discover there is no reported decision of this Court on the point. The point was considered by the Court of the Judicial Commissioner of Upper Burmah in the case of Mi Shwe Nyun v. King-Emperor [1904] 1 Cr. L.J. 543 and the Chief Court of the Punjab in the case of Emperor v. Manohar Das [1904] 24 P.R. 1904 Cr., which latter decision has been afterwards followed by the same Court in the case of Hayata v. Emperor [1917] 20 P.R. 1917 Cr.. The Allahabad High Court appears to have followed the ruling of the Punjab Chief Court, see the case of Emperor v. Ghasite [1915] 37 All. 31.

3. All the above decisions are in favour of the view that an appeal does lie from an order passed under Section 562, Criminal Procedure Code.

4. From a consideration of the provisions of Chapter XXXI of the Code which were framed long before Section 562 was enacted it is difficult to evolve a complete scheme; and in this respect the present case is perhaps more unsatisfactory than its predecessor.

5. Section 404, Criminal Procedure Code seeks to classify appeals into appeal from judgments and appeals from orders, though judgments and orders are not necessarily contrasted terms. Assuming, however, that judgments stand for final orders of conviction or acquittal, though to accept this meaning also there may be some difficulty, Sections 406 and 406-A speak of appeals against orders, while Sections 407 and 408 speak of appeals against orders and sentences by convicted persons; Sections 410, 411, 412,413 and 414 speak of appeals by convicted persons only, the explanations to Section 413 and Section 415 speak of appeals from or against sentences. Section 415 A speaks of an appealable judgment or order, though the word judgment does not occur in any of the other sections. Moreover Section 417 speaks of an order of acquittal. Section 423 mentions an appeal from an order of acquittal, appeal from a conviction and an appeal from any other order. In Section 425 the expression 'finding, sentence or order appealed against'' occurs. Under the Indian Limitation Act for the purpose of a criminal appeal time runs from date of the sentence or order appealed against, indicating that orders of acquittal are orders and not judgments: so also an order of conviction is an order unless followed by a sentence. Travelling outside Chap. XXXI, further difficulties are in the way, e.g., in Section 307 occurs the expression judgment of acquittal or of conviction, and Section 349 speaks of judgment, sentence or order. It is unnecessary to proceed further with an examination of the other sections of the Code, for as I have said, no consistency has been attempted to be maintained in the meaning and import of the words and expressions referred to above.

6. Marginal notes are not parts of the sections, but there is no reason why they should not be consistent with the sections themselves. As an instance if we take Section 407, Criminal Procedure Code the section speaks of an appeal by a person convicted on a trial held by a Magistrate of the second or third 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, Criminal Procedure Code by a Sub-Divisional Magistrate of the second class. The marginal notes to the sections only speak of appeal from sentence of Magistrate of the second or third class, ignoring the distinction between orders and sentences indicated in the body of the section, and is thus inapposite. It is not profitable to multiply instances.

7. Examining the relevant provisions of the chapter for a solution of the question that we have to decide it would appear that the question is not altogether free from difficulty and the learned Judges who had to deal with the question under the Code of 1898 felt it in no small measure. Under the present Code the difficulty remains the same, if it has not become greater.

8. On the one hand, no provision as to appeal has been expressly made in respect of an order under Section 562 and Section 404 says 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. Section 407, however, which deals with appeals by persons convicted on trials held by Magistrates of the second or the third class, gives a right of appeal from a sentence of a Sub-Divisional Magistrate of the second class and also against an order (which is not a sentence) passed by a Sub-Divisional Magistrate of the second class under Section 380, Criminal Procedure Code. An order under Section 562(1) may be passed by the Sub-Divisional Magistrate under the provisions of Section 380 according to the proviso to Section 562(1). Such an order, if passed by him, would be clearly appealable under Section 407, Criminal Procedure Code. Then turning to Section 408, 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, Criminal Procedure Code. Such an order, as I have already said, may include an order under Section 562(1). This section is controlled by two sub-sections, viz., (b) and (c) Sub-section (a) having been deleted from the Code of 1898. These two sub-sections contained in the proviso do not, in my opinion, curtail the right of appeal given by the section itself, but make exceptions as to the venue of the appeal which ordinarily lies to the Court of Session, in cases specifically mentioned in the provisos (b) and (c). The rights conferred by Sections 407 and 408 are only restricted by the reservation contained in Sections 412, 413 and 414 and subject to the provisions of Section 415 which is a proviso to Sections 413 and 414.

9. Upon a plain reading of the statute I am disposed to put upon it the interpretation which I have indicated above. I am aware that this interpretation leads to certain anomalies, but a contrary view, in my opinion, leads us into absurdities of not less serious nature.

10. 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 those mentioned in Section 413, or summary convictions such as are mentioned in Section 414, while, in cases where there is no sentence 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 statutory deprivation of a general right of appeal, however, must always be construed strictly.

11. I am further confirmed in my view by certain other considerations as well. In the first place the general tendency of the Amending Act of 1923 has been to enlarge rather than to curtail the right of appeal in favour of accused persons. By that Act several orders which were not formerly appealable have been made so; right to appeal to a higher Court has been conferred by Section 406, an order refusing to accept or rejecting a surety has been made appealable by Section 406-A, the immunities enjoyed by certain sentences under Sections 413 and 414 have now been taken away, special right of appeal has been created in certain cases under Sections 415-A and 418 (2); and it is also interesting to note that in the matter of refusal to accept or of rejecting sureties offered in compliance with an order under Section 562 (1) the provisions as to right of appeal have been made applicable by Sub-section (4) of Section 562. Furthermore, the cases to which I have already referred are the decisions of High Courts within the meaning of the Code of Criminal Procedure. They are decisions of superior Courts in this country and the legislature must be presumed to have been aware of their existence when they proceeded to amend the Code. If with the knowledge of these decisions they only amended Chapter XXXI in this respect not by making any reference to Section 562 at all, but on the other hand by introducing into Sections 407 and 408 the words, ' or in respect of whom an order has been made or a sentence passed under Section 380'-the words, the omission of which from the Code of 1898 was commented on in one of the cases referred to above-the conclusion irresistibly follows that they never intended to make a change in the law by the curtailment of a right which the accused must be taken to have enjoyed all this time.

12. In the present case therefore an appeal lay to the Court below on behalf of the convicted persons against whom the order under Section 562 (1) was made, and by the operation of Section 415-A there was a right of appeal in the other convicted persons as well. The order of the Court below complained of in this Rule should therefore be set aside and the said appeal should now be heard and disposed of in accordance with law.

13. The Rule, in my opinion, should be made absolute.

Suhrawardy, J.

14. I agree.


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