R P KHANNA Vs. STATE

JUDGEMENT

(1.) The appellant was convicted by a Presidency Magistrate of an offence under Section 420 of the Indian Penal Code and was sentenced to rigorous Imprisonment for six months and to pay a fine of Rs. 300, in default to suffer rigorous imprisonment for three months more. The appeal was presented to this Court on the 7th of February, 1955. It came up for hearing before this Bench (Guha Ray and Sen JJ.) on the 22nd February, 1955. The prayer made in the memorandum of appeal was in these words :

(2.) Mr. Banerji has submitted that, if possible It would be proper to read the order passed by this Court on the 22nd February, 1955 in a way that makes it an order in accordance with law and that the only way to do it is to read it as not amounting to summary dismissal as regards the order of conviction.

(3.) I find it impossible, however, to read the order passed by this Court in any other way than that while the Judge thought that they were not prepared to dismiss the appeal summarily in accordance with Section 421 and therefore, were directing issue of notice and calling for records under the provisions of Section 422, they were at the same time giving a direction that, at the hearing, the appellant would be restricted to arguments only on the ground of sentence. The question then arises whether, in spite of this, it is open to the Court at a later stage, to allow arguments against the order of conviction passed by a Magistrate. I confess that I have felt some difficulty in the matter partly because perhaps the order of the 22nd February, 1955 was passed by Judges other than ourselves, and was at first inclined to think that after once an order of this nature had been passed, it is not open in this Court, but only to a superior Court to decide that the appeal can be heard as against the order of conviction also.