KALLUMAL Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed against the order and judg ment dated 26. 11. 1975 of 111 Addl. Dis trict and Sessions Judge, Farrukhabad in Sessions Trial No. A-59 of 1975 convict ing them under Sec. 323 I. P. C. and sentencing each of them to pay a fine of Rs. 100/ -. In default of payment of fine to underso S. I. for six months. Kallumal was prosecuted under Sec. 3t8 I. P. C. and all other appellants were prosecuted under Sec. 147 I. P. C. but were acquitted under those sections. A preliminary objection has been raised in this case by the learned counsel for. the State that such an appeal is barred under Sec. 376 (b) Cr. P. C. The section reads as follows :- "sec. 376, Notwithstanding anything contained in Sec. 374 there shall be no appeal by convicted person in any of the following cases, namely; (a ). . . . . . . . . . . . . . . . . . . . . . . .- (b) where a court of session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine ; (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground- (i) that the person convicted is ordered to furnish security to keep the peace ; or (ii) that a direction for imprison ment in default of payment of fine is included in the sentence, or (iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount hereinbefore specified in respect of the case. Sri Keshav Sahai, learned counsel for the appellants has argued that proviso (ii) would mean that in case there is a sentence of imprisonment up to three months and also sentence of fine up to Rs. 200/- and in default of payment of fine there is further sentence of imprison ment up to three months or less than three months, then no appeal would lie. But in case the sentence in default of payment of fine is more than three months, then the appeal would lie. He has also argued that the proviso should be read in a very strict manner and when it is capable, of two interpretations, inter pretation favourable to the accused should be given. He has further argued that it being adjective law, statute should be so interpreted that no possible remedy of the accused is shut out. I have given my careful consideration to all these arguments and, in my opinion the pro viso referred to above is not capable of any two interpretations. No limit of sentence of imprisonment in default of payment of fine has been provided. There is thus no basis for the argument that the appeal would lie when the sen tence in default of payment of fine is for more than three months. He has based this argument on the wording of the proviso that "against any such sentence if any punishment is combined" I do not agree with this contention. Section 376 (b) clearly provided that substantive sen tence should be up to three months and fine should be up to Rs. 200/- when it is read with proviso to sub-Sec, (b) it obvioubly follows that the substantive sentence and the sentence in default of payment of fine combined could be for more than three months. Sri Keshav Sahai states that it is possible that both such sentences combined may exceed three months. But he has argued that when the sentence of fine alone has been imposed it could not be for more than three months, as the maximum substan tive sentence should be only of three months. I do not agree with this contention as, in my opinion, no limit is prescribed under clause (ii) of the proviso. The appeal is, therefore, incom petent. Sri Keshav Sahai, learned counsel for the appellants has next argued that the appeal may be tioatcd as revisional only. One illegality has been pointed out that under Sec. 65 I. P. C. the. sentence in default of payment of fine could not be more than one-fourth of the maximum sentence provided. I am, therefore, prepared to treat this appeal as revision and modify the order to this extent. ORDEr The appeal, which is treated as revi sion, is partly allowed to this extent that the conviction and sentence of the appel lants under Sec. 323 I. P. C. and a line of Rs. 100/- are maintained but the order of the lower Court is modified in as much as that each of the appellant shall under go S. I. for three months, in default of payment of fine instead of six months. The staty order is vacated. They are allowed six weeks time from today to deposit the fine. .