DARGAHI Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by three persons who were convicted under Section 447, Indian Penal Code, and sentenced to pay a fine of Rs. 50 each; two of the petitioners Dargahi and Suba Khan, were also convicted under Section 323, Penal Code, J and sentenced to pay a fine of Rs. 25 each by a Magistrate in a summary trial under the provisions of chap. 22, Criminal P.C.

(2.) On appeal the learned Sessions Judge took the view that as the aggregate fines imposed upon the petitioners did not exceed Rs. 200 no appeal lay to him. He also refused to make a reference to this Court under Section 435, Criminal P.C. It is argued on behalf of the petitioners that the learned Judge was wrong in holding that the appeal before him was incompetent. It is submitted that under Section 414, Criminal P.C., as it now stands after the amendment of 1923, read with Section 415, the appeal was competent, because the Magistrate has passed two sentences of fine which come within the words " by which any two or more of the punishments therein mentioned are combined" as provided by Section 415. I do not agree with this argument. The case law is almost unanimous.

(3.) In Akabbar Ali V/s. Emperor Cuming J. held that when a first class Magistrate passed two sentences of fine, each of Rs. 40 only, under two sections of the Penal Code, on two accused and one such sentence on each of the remaining two accused, an appeal lay to the Sessions Judge both with regard to the former and also with regard to the latter. It will be noticed that the appeal was held to be competent, because the aggregate of sentences of fine in the case of those accused who were convicted under both sections of the Indian Penal Code exceeded Rs. 50. In Nawabali Haji V/s. Joinab Bibi Mitter, J. held that the words "a sentence of fine" in Section 413, Criminal P.C., must be held to include the cases where the aggregate sentence does not exceed a fine of Rs. 50. He pointed out that where two sentences of fine are passed, it is the aggregate which is to be looked into for the purpose of determining the right of appeal.