STATE Vs. SUKUMAR CHAKRABORTY

JUDGEMENT

(1.) This case has been referred to a full bench for disposal after decision of the following questions: (1) Does an appeal lie to the Sessions Judge when in a proceeding under Section 480 or 485A of the Criminal Procedure Code a Magistrate of the First Class has imposed a sentence not exceeding Rs. 50? (2) Was the case of Bhowani Mohan Joardar v. Emperor, ILR 1944 (1) Cal 31 corresponding to AIR 1944 Cal 382 rightly decided?

(2.) The case arose as follows: The accused Dr. Sukumar Chakraborty was summoned as a witness in a case pending in the Court of the Magistrate, First Class, Uluberia, being C. R. case No. 307 of 1959. As he failed to attend, a warrant was issued against him and after his appearance the witness, Dr. Sukumar Chakraborty, was tried summarily by the Magistrate, First Class, Uluberia, under Section 485A of the Criminal Procedure Code. He was convicted and sentenced to pay a fine of Rs. 50 in default to suffer simple imprisonment for one week. Against that conviction and sentence Dr. Sukumar Chakraborty filed an appeal in the Court of the Sessions Judge, Howrah, and the appeal was admitted. On November 30, 1960, an application was filed on behalf of Dr. Sukumar Chakraborty, before the Sessions Judge, Howrah, stating that he had been advised that no appeal was maintainable and praying that his memorandum of appeal might be treated as an application for revision and reference be made to the High Court under Section 438 of the Criminal Procedure Code. On receipt of this application the Sessions Judge, Howrah, treated the memorandum of appeal as an application for revision and transferred the case to the Court of the Additional Sessions Judge to be treated as a criminal revision application. On January 2, 1961, the Additional Sessions Judge made his report and sent the case to the High Court purporting to act under Section 438 of the Criminal Procedure Code. After consulting the record of G. R. Case No. 307 of 1959, he noted that the provisions of Sub-section (2) of Section 485A of the Criminal Procedure Code had not been complied with, that although there was no request y him in writing to be examined as a witness Dr. Sukumar Chakraborty was actually examined as an accused and as such the procedure laid down in the proviso to S. 342A had not been followed. He therefore recommended that the conviction and sentence of Dr. Sukumar Chakraborty should be set aside and a re-trial be held by a different Magistrate.

(3.) The reference was heard in the first instance by Amaresh Roy, J. Before him it was contended that an appeal did lie against the order of conviction and sentence passed by the Magistrate, Uluberia. Although the accused had filed an appeal he was advised by his lawyers on the strength of the decision in ILR (1944) 1 Cal 31 : (AIR 1944 Cal 382) that no appeal lay from the sentence imposing a fine of Rs. 50 because of the provisions of Section 413 of the Criminal Procedure Code. The learned Judge was not inclined to take the same view of the law as was done by the division bench in Bhowani Mohan Joarder's case, ILR (1944) 1 Cal 31 : (AIR 1944 Cal 382). He referred to a decision of the Allahabad High Court in the State v. Tribeni Sharma where after considering the above Calcutta decision the learned Judges had come to a different conclusion. As the learned Judge was of the view that the question involved a right of appeal and there was a decision of the division bench of this Court which required reconsideration he referred the case to a division bench.