NAWAB ALI HAZI Vs. JOINAB BIBI

JUDGEMENT

(1.) A very ingenious argument has been put forward by Mr. Talukdar who appears for the petitioners in this Rule. The question involved in this Rule turns on the construction of Section 413, Criminal P. C. and concerns the right of appeal of a convicted person. It appears that the petitioners Nawab Ali and Atahar Ali were convicted by the First Glass Magistrate of Perojpur under S.379, and Section 114 read with 324, I. P. C., and both of them have been sentenced under two sections-- Nawab Ali having been sentenced under Sec. 379 to pay a fine of Rs. 20 and under Section 114 read with 324 a fine of Rs. 15 and the other accused Atahar Ali having been sentenced to pay a fine of Rs. 20 under Section 379, I. P. C, and to pay a fine of Rs. 30 under Section 324 of the same Code. In the case of each of these petitioners the aggregate fine does not exceed Rs. 50. Against the convictions and sentences an appeal was preferred to the Court of the District and Sessions Judge of Backergunj and the learned District and Sessions Judge was of opinion that the appeal before him was barred by the provisions of Section 413, Criminal P. C. Section 413 runs 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 Rs. 50 only.

(2.) As I have already stated the aggregate fine in either case does not exceed Rs. 50 and according to the plain language of the statute it seems to me that the District and Sessions Judge is right in holding that the appeal is barred, But it has been argued by Mr. Talukdar that stress must be laid in construing the section on the use of the expression "a sentence of fine" and it is said that here there is not a sentence of fine" but there are two sentences of fine and in support of this contention reference has been made to a decision of Cuming, J., in the case of Akabbar Ali V/s. Emperor .

(3.) That case however is distinguishable, for in that case the learned Judge of the First Class passed two sentences of Rs. 40 each. Therefore the aggregate sentence was in excess of Rs. 50. It follows that it did not come within the mischief of Section 413, Criminal P. C. It is argued however that the reasoning on which this decision is based assists the contention of the appellant that in order to shut out the right of an appeal there must be one sentence of fine not exceeding Rs. 50 and not two separate sentences of fine although the aggregate might be less than Rs. 50. There are perhaps some passages in the judgment of my learned brother Cuming, J. which may be quoted here as lending colour to the contention put before me: The learned advocate argues therefore the only restriction to the right of appeal is that when a Magistrate of the First Class has passed a sentence of fine not exceeding Rs. 50. In this case, he contends, that the Magistrate has passed two sentences each of Rs. 40 and therefore it does not fall within the mischief of Section 413, Criminal P. C. and that the petitioners ate entitled to appeal. This view of the law which is a novel one is, I think, well founded. Section 408, Criminal P. C. grants the right of appeal and any restriction on that right of appeal must be very strictly construed in favour of the subject. Any restriction that takes away a very substantive right must always be very strictly construed and construed, in favour of the subject. In that view of the case, I am of opinion that so far as petitioners 1 and 2 are concerned an appeal does lie.