MOTILAL SINGH Vs. HARISHANKAR SINGH

JUDGEMENT

(1.) The facts of this case are as follows : The trial of the petitioners on a charge Undrer Scetion 427, Penal Code, began in the Court of Mr. Ashraff, a Magistrate with second class powers, on 16-6-1948. Arguments in the ease were concluded on 19-5-1949, when the case was postponed until 31st May for judgment. Judgment, however, was not delivered until 7th June when the accused were convicted and ordered to pay fines of RS. 50 each. On 31-5-1949, the Magistrate was invested with first class powers.

(2.) Against their convictions and sentences an appeal was preferred to the District Magistrate. The matter was heard by the Additional District Magistrate who treated it as an application in revision, holding that as Mr. Ashraff had first class powers on the date he delivered judgment, no appeal lay from the convictions and sentences passed by him in this case. Section 407, Criminal P. C. provides that any person convicted at a trial held by any Magistrate of the second or third class may appeal to the District Magistrate. The generality of this provision, however, is limited by Section 413 which opens with the words "notwithstanding anything hereinbefore contained," and then goes on to state that there shall be no appeal by a convicted person in cases in which a Magistrate of the first class passes a sentence of fine not exceeding RS. 50. The Magistrate who passed the sentences in this case was a Magistrate of the first class at the time that he passed the sentences, and, therefore, Section 413 bars an appeal. This was the view which I took in Deonandan v. Chalitar Mahton, A.I.R. (29) 1942 Pat. 107 : (43 Cr. L. J. 7). 2a. It is contended, however, that there has been a Division Bench decision of this Court in which a different view has been taken, namely, the case of Sheobhanjan Singh v. Emperor, A.I.R. (12) 1925 Pat. 472 : (26 Cr. L. J. 914). The facts of that case were that during the progress of a trial the second class Magistrate who was presiding was invested with first class powers. Thereafter the trial continued and some prosecution witnesses were cross-examined and discharged. Then, in the ordinary course, arguments were heard and judgment was delivered. The report does not state what sentence the Magistrate had passed. It appears that the matter came before this Court on a reference by the Sessions Judge who was of opinion that the appeal lay to the District Magistrate. The learned Judges held that as part of the trial was held while the Magistrate was a Magistrate of the first class, the proper tribunal for hearing the appeal was the Sessions Judge and not the District Magistrate. There is nothing in the judgment of that case affecting the decision to which I have already referred. No reference was made to Section 413 of the Code, and the report does not disclose what the sentence was.

(3.) The judgment in Deonandan Mahton's case, A. I. R. (29) 1942 Pat. 107 : (43 Cr. L. J. 7) proceeded on the basis that the judgment is no part of the trial. The learned advocate for the petitioners states that this view cannot be maintained in view of the decision of the Privy Council in Basil Ranger Lawrence v. Em-peror, A. I. R. (20) 1933 P. C. 218: (34 Cr. L. J. 886). That was an appeal from Nigeria. After the accused had been convicted he was sentenced by the presiding Judge to three years' imprisonment, and the jury was discharged. On the application of the Solicitor General who conducted the prosecution the Judge revised this sentence in chambers without notice to the accused and in his absence. Commenting on the impropriety of this, their Lordships observed that it is an essential principle of criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and, for this purpose, trial means the whole of the proceedings, including the sentence. An alteration and recording of the sentence in the absence of the accused is not legal. The facts of that case are entirely different from the facts of the present case, and the observations of their Lordships of the Privy Council are not applicable to the facts of this case.