EMPEROR Vs. KISAN SAKHARAM PATIL

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge of East Khandesh in the following circumstances. One Kisan Sakharam Patil was tried for offences under Sections 323, 504 and 448 of the Indian Penal Code by Khan Saheb Dabhoiwala an Honorary Magistrate who at the beginning of the trial was invested with second class powers, Towards the end of the trial he was invested with first class powers. It appears that after he became a First Class Magistrate one witness for the defence was cross-examined, the scene of offence was inspected, the arguments were heard and judgment was pronounced. The accused was fined Rs.40. He presented an appeal to the District Magistrate, and the latter was requested to treat it as an application in revision in case he held that no appeal lay. The learned District Magistrate after hearing arguments on the point decided that an appeal did lie to him and he transferred the appeal for hearing by the Sub-Divisional Magistrate. It appears that he was mistakenly under the impression that the whole of the evidence had been heard by Khan Saheb Dabhoiwala while he was Second Class Magistrate. The complainant in the case then approached the Additional Sessions Judge in revision and he differed from the District Magistrate, held that no appeal lay and referred the matter to this Court.

(2.) THE sections which determine the forum of appeal are Sections 407 and 408 of the Criminal Procedure Code. Section 407 (2) provides as follows : Any person convicted on a trial held by any Magistrate of the second of 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 by a Sub-Divisional Magistrate of the second class, may appeal to the District Magistrate. And Section 408 says : 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.) WE have been referred to a case of our own High Court, Emperor v. Maganlal (1927) 29 Bom. L.R. 482. What happened there was that a substantial part of the trial had been held by the Magistrate concerned after he had been invested with first class powers and on that ground it was held that an appeal from his judgment lay to the Court of Session. This would be sufficient authority for holding that in the circumstances of the case before us also the appeal would lie to the Sessions Court, provided any appeal lay.