BEJOY KUMAR KUNDU Vs. SITANATH KUNDU

JUDGEMENT

(1.) This is a reference made by the Sessions Judge of Faridpur. The facts giving rise to it are as follows: The accused Sitanath Kundu and four others were tried and convicted by Mr. M.C. Mukherjee, Magistrate, Madaripur, and sentenced to pay a fine of Rs. 20 each. When the trial commenced, Mr. Mukherjee was a Magistrate having second class powers. The learned Magistrate heard arguments in this case on 27 July 1939. It is now admitted that before this date but after the evidence had been concluded the learned Magistrate was invested with first class powers. After hearing arguments on 27 July 1939, the learned Magistrate adjourned the case and delivered judgment on 31 July 1939 convicting the accused and passing the aforesaid sentence. It is thus quite clear that on the date on which the sentence was passed, the learned Magistrate was a Magistrate having first class powers. The accused appealed from the decision of the learned Magistrate to the District Magistrate. The appeal was heard by a Deputy Magistrate having appellate powers. He held the opinion that as the case was heard partly by a second class Magistrate and partly by a first class Magistrate who had passed the sentence no appeal lay to him and that if any appeal lay at all, it would be to the Sessions Judge. In this view, he returned the petition of appeal to the appellants to enable them to file it in the proper Court. The accused then moved the Sessions Judge. The learned Sessions Judge is of opinion that the order of the learned Magistrate should be set aside. He holds the view that by reason of the provisions of Section 407, Criminal P.C., the appeal must lie to the District Magistrate and he refers us to the case in Baramaddi V/s. Magorali . He recommends that the order of the learned Magistrate be set aside and that this Court should direct the appeal to be heard by the District Magistrate.

(2.) I am of opinion that this reference must be rejected. I do not propose to deal at length with the numerous cases which have been placed before us inasmuch as I hold the view that Section 413, Criminal P.C., is clearly applicable to this case and that it bars any appeal. The learned advocate appearing in support of the reference placed an argument before us which may be summarized as follows: In this view, the hearing of arguments and the passing of judgment do not form part of a trial. The trial according to him ends before the arguments are heard. He then refers us to the wording of Section 407, Criminal P.C., which is as follows: Any person convicted on a trial held by any Magistrate of the second or third class....may appeal to the District Magistrate.

(3.) He points out that Section 407, Criminal P.C., deals with the case of a person who has been tried by a second class Magistrate and that it does not say anything about the powers of the Magistrate who has convicted the accused or passed the sentence. He argues that if the trial is held by a second class Magistrate the provisions of the Section are at once attracted even though the sentence be passed by a first class Magistrate. In this case, according to the learned advocate for the accused the trial was completed by a second class Magistrate inasmuch as Mr. Mookerjee was not invested with first class powers until after the evidence had been closed. He contends therefore that an appeal lay before the District Magistrate. In support of this view, he has placed before us the case relied upon by the learned Sessions Judge to which I have already referred and also to the cases of Emperor V. Maganlal Jhaverchand (1927) 14 A.I.R. Bom. 366 and Bakshi Ram V/s. Emperor . On behalf of the Crown and the complainant it was argued that a trial does not come to an end until judgment is delivered and it was urged that Section 407 had no application. The question as to when a trial may properly be said to terminate is one of some nicety but I do not think that I need enter upon a discussion regarding this question in view of the particular facts of this case and in view of the clear words of Section 413, Criminal P.C. That Section is as follows: Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a Court of Session passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or District Magistrate or other Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only.