E M NARAYANAMURTY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) E. M. Narayana Murthy, the revision petitioner, was convicted by the IVth Metropolitan Magistrate, Hyderabad on August 12, 1981 under Sec. 409 of the Indian Penal Code and sentenced him to rigorous imprisonment for three months and to pay a fine of Rs 200/- in default of payment of fine, to undergo a simple imprisonment for one month. He was further under sec. 467 of the Indian Penal Cede, convicted and sentenced to suffer rigorous Imprisonment far a period of three months. The two sentences were ordered to run concurrently. The petitioner questioned the two sentences in appeal before the Metropolitan Sessions Judge st Hyderabad. The sentences in the case were considered under Sec. 376 of the Code of Criminal Procedure (Act II of 1974) "a petty case'' and the case disposed of "as revision" in the order on October 5 1981 and the two sentences were confirmed. The question now in this court raised is that as appeal is provided under the Code of Criminal Procedure against the order of sentences dated August 12, 1981 by the IVth Metropolitan Magistrate and the case should have been considered by the appellate authority as an appeal, not as a revision.

(2.) In the Code of Criminal Procedure (Act II of 1974) under Sec. 3 "4 against every order of the Magistrate of the First Class, unless it is a petty case within the meaning of sec. 376 of the Code of Criminal Procedure of that Court, an appeal is provided to the Court of Sessions. Agaist a sentence of three months or of fine not exceeding Rs. 200/- or of both, such imprisonment and fine (not withstanding anything contained in sec. 374 of the Cods of Criminal Procedure) it is recited no appeal is provided. In clause (3) of Sec. 31 of the Code of Criminal Procedure' for an appeal by a convicted person, the aggregate of the consecutive sentences passed the Code of Criminal Procedure recites, "to be deemed' a single sentence. A like provision, however is not made in the Code when sentences are ordered to run concurrently. In the case on hand, there are two sentences under sec. 409 and 467 of the Indian Penal Code They are ordered to run concurrently, Therefore clause, (3) of Sec. 31 of the Code of Criminal Procedure is inapplicable. The two sentences are not to be understood as one sentence, The question now at issue is whether such a case is covered by clause fb) of Sec. 376 of the Code of Criminal Procedure?

(3.) The learned counsal for the petitioner referred to cases under Sec. 413 of the Rapealed Cade of Cciminal Procadure (Act V of 1898) and in them there is no uniformity in the views expressed by Courts in India. The cases arose mostly in cases of fines In Akbar AM Vs Emperor AIR 1931 Cal. 642 and in Khagandra Nath vs. Thandaram (2) AIR 1951 Cal. 454, there is some discussion touching on this point, but In the two cases, the sentences were of fine and the observations made are obiter. The view in (he case of Bapin Behary Day Vs. Emperor (3) (1911) 11 I.C. 225 and in Abdul Khalek Vs. Emperor (4) (1912) 17 I.C. 813 was not followed in Sukhnanda Singh vs. Emperor (5) (1912) 17 I.C. 531. There is some discussion ,in Aziz Sheik vs. Emperor (6) (1913) 19 I.C. 510 and in Tulsi Ram vs. Emperor (7) (1913) 18 I.C. 679 but of not much help. The dicta and observations in the above seven cases, thus, do not render any assistance to resolve the question raised now. The question to be answered thus on the basis of language in clause (b) of Sec.376 of the Code of Criminal Procedure.