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Akabbar Ali and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1931Cal642
AppellantAkabbar Ali and ors.
RespondentEmperor
Excerpt:
- .....of rs. 40 under that section also. all the four petitioners appealed to the sessions judge. the learned sessions judge holding that no appeal lay dismissed the appeal. they then moved this court and have obtained the rule on the ground that an appeal does lie.2. the learned advocate for the petitioners has put the case as follows: section 408, criminal p.c., granting a right of appeal to any person convicted by a magistrate of the first class to the court of sessions makes no mention of sentence. the only restriction on this right of appeal will be found, it is argued, in section 413, criminal p.c., in which it is said that there shall be no appeal by a person convicted in cases in which a court of sessions passes a sentence of imprisonment not exceeding one month only or in which a.....
Judgment:

Cuming, J.

1. This rule has been granted on the application of the four petitioners on the following facts : The four petitioners were convicted by a Magistrate of the first class under Section 447, I. P.C. and each sentenced to pay a fine of Rs. 40 under that section. Petitioners 1 and 2 were further convicted under Section 323, I. P.C., and each sentenced to pay a fine of Rs. 40 under that section also. All the four petitioners appealed to the Sessions Judge. The learned Sessions Judge holding that no appeal lay dismissed the appeal. They then moved this Court and have obtained the rule on the ground that an appeal does lie.

2. The learned advocate for the petitioners has put the case as follows: Section 408, Criminal P.C., granting a right of appeal to any person convicted by a Magistrate of the first class to the Court of Sessions makes no mention of sentence. The only restriction on this right of appeal will be found, it is argued, in Section 413, Criminal P.C., in which it is said that there shall be no appeal by a person convicted 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 fifty rupees only. The learned advocate argues therefore the only restriction to the right of appeal is that when a Magistrate of the first class has passed a sentence of fine not exceeding Rs. 50. In this case, he contends that the Magistrate has passed two sentences each of Rs. 40 and therefore it does not fall within the mischief of Section 413, Criminal P.C., and that the petitioners are entitled to appeal.

3. This view of law which is a novel one is, I think, well founded. Section 408, Criminal P.C., grants the right of appeal and any restriction on that right of appeal must be very strictly construed in favour of the subject. Any restriction that takes away a very substantial right must always be very strictly construed and construed in favour of the subject. In that view of the case I am of opinion that so far as the petitioners 1 and 2 are concerned an appeal does lie; and having regard to the provisions of Section 415-A there is a right to appeal on behalf of the other two petitioners.

4. The rule is made absolute. The order of the learned Sessions Judge is set aside and he must hear the appeals.


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