DEONANDAN MAHTO Vs. CHALITAR MAHTON

JUDGEMENT

(1.) The facts of the case material for the understanding of the point of law raised in this application are as follows. The trial of the petitioners on a charge under Section 379, Indian Penal Code, opened before Mr. Martin, a Magistrate invested with second class powers on 11 March 1941. Some of the witnesses were examined on that date and the remainder on 24 March. On 8 April, the accused filed a written statement; they did not examine any witnesses; the learned Magistrate heard the arguments of both sides. The case was then adjourned until the 2lst for judgment. On 2l April, unfortunately, the Magistrate was ill and the case was then adjourned until 27 June, for judgment. In the meanwhile on 10 May, Mr. Martin was invested with first class powers. On 27 June, he delivered judgment convicting the accused and ordering them to pay a fine of Rs. 20 each or in default undergo rigorous imprisonment for one month. An appeal was preferred to the District Magistrate who took the view that as Mr. Martin was invested with first class powers before he delivered the judgment the forum of appeal was the Court of Session and not the Court of the District Magistrate. The memorandum of appeal was therefore returned to the appellants. They then presented an appeal to the Sessions Judge. The latter held that as the sentence was one of fine of Rupees 20 only in the case of each accused person no appeal lay at all.

(2.) In this Court reliance has been placed on the provisions of Section 407, Criminal P.C., which provide that any person convicted on a trial held by any Magistrate of the second class may appeal to the District Magistrate. It is contended that the conviction of the petitioners was on a trial held by a Second Class Magistrate and, that therefore their appeal to the District Magistrate should have been entertained and disposed of by that Magistrate in accordance with law. The distinction drawn by the Legislature in the Criminal Procedure Code between the trial of a case and the decision of a case was pointed out by a Division Bench of the Allahabad Court in Emperor V/s. Bakshi Ram , where a reference was made to Section 366 of the Code which provides that judgment shall be delivered after the termination of the trial. It was held that the judgment is no part of the trial and that the trial does not extend to the date of the delivery of judgment. Accordingly, on the facts of this case the trial must be taken to have been completed on 8th March 1941, on which date nothing remained to be done but to deliver judgment. Prima facie, therefore, the contention of learned Counsel for the petitioners is right in law that Section 407 entitled the petitioners to the hearing of their appeal by the District Magistrate. But the general right of appeal conferred on a person convicted on a trial by a Magistrate of the second class which is conferred by Section 407 is taken away in certain cases by Section 413 of the Code. That section, which opens with the words, "Notwithstanding anything hereinbefore contained," goes on to say that there shall be no appeal by a convicted person in cases in which, inter alia, a Magistrate of the first class passes a sentence of fine not exceeding Rs. 50 only. That is precisely what has happened in this case. Although the trial must be taken to have been held by a Magistrate of the second class the sentence was passed by a Magistrate of the first class, and is one of fine of Rs. 20 only.

(3.) In Bijoy Kumar V/s. Sita Nath it was held that there was no appeal from a sentence of fine not exceeding Rs. 50, passed by a Magistrate who began the trial when he had second class powers only but was invested with first class powers after the taking of evidence had been concluded. The distinction between the facts of that case and the facts of this case was that in the Calcutta case t the Magistrate had been invested with first class powers before the arguments were heard; but that, in my view, does not make any material difference to the decision in the case so far as the operation of Section 413, is concerned. In fact the learned Judges of the Calcutta High Court in that case maintained that it was unnecessary for them to determine the question as to when the trial terminated because of the view which they took with regard to the operation of Section 413. My attention has been drawn to a single Judge decision of the Chief Court of Lower Burma reported in Emperor V/s. Nga Paw4 L.B.R. 239. In that case the g attention of the learned Judge was not drawn to Section 413, Criminal P.C. In my view, there was no right of appeal at all in the present case and this application must be dismissed.