MAYANDI NADAR Vs. PALA KUDUMBAN

JUDGEMENT

(1.) The question raised in this case is whether an order passed by a Court under Section 562, Criminal Procedure Code, is appealable. The petitioner was complainant in a case in which four persons were convicted of breaking into a shop at night and committing theft, under Sections 457 and 380, Indian Penal Code. The first and second accused were boys aged 12 and 15 respectively and the Stationary Sub-Magistrate who convicted them released them after due admonition under Sub-section 1-A, of Section 562. The third accused was of mature years and received a fine of Rs. 25. The fourth and last accused was a youth aged 17, and he was released under Section 562(1) on entering into a bond with one surety. The accused two to four preferred an appeal and the learned Sessions Judge who disposed of it has, we think, rightly held that the release after admonition of the second accused was illegal because Sub- section 1-A does not apply to a case of house-breaking and further that the sentence of fine alone imposed upon the third accused was illegal because Section 457, Indian Penal Code, makes a sentence of imprisonment, with or without fine, compulsory. In the result he set aside the orders of the Court below, thereby acquitting the accused, and left the matter there, considering the case not of sufficient gravity to merit further action.

(2.) Mr. Jayaram Aiyar for the petitioner argues that no appeal lay from the orders of the Stationary Sub-Magistrate (who it may be explained exercises first class powers) to the Sessions Judge. We may take it that no appeal would lie from the order imposing a fine under Section 457, Indian Penal Code, although it was an illegal order, because such an appeal would be excluded by the terms of Section 413, Criminal Procedure Code. The question then is whether an order under Section 562 is appealable. If it is appealable the other persons convicted at the trial would have a right of appeal under Section 415-A.

(3.) Under Section 404 no appeal lies from any judgment or order except as provided for by the Code, and under Section 408 any person convicted on a trial held by a Magistrate of the first class may appeal to the Court of Session, subject to the qualifications as regards minimum sentence contained in Secs.413 and 414. Section 562, provides that a first offender dealt with under its provisions must first be convicted ; and if the word convicted is used in the same sense in that section and in Section 408 there can be no escape from the conclusion that a person dealt with under Section 562 has a right of appeal. The argument that Section 423, which defines the powers of an appellate Court in disposing of an appeal, does not contain any provision for setting aside an order under Section 562 does not, we think, avail to affect that conclusion. The language of Section 423 has remained unchanged since the Code of 1882, which contains no provisions similar to those of Section 562. It is unnecessary to regard Section 423 as an exhaustive statement of the powers of an appellate Court or to hold that an appeal from a conviction can only be entertained when the conviction is accompanied by a sentence. On the other hand Section 408, renders an order made or sentence passed under Section 380, Criminal Procedure Code, appealable - an amendment inserted in 1923 probably in consequence of doubts such as arose in Emperor V/s. Bhimappa Ulvappa (1915) 17 Bom. L.R. 895 and it is difficult to see why if an order under Section 380 is appealable an order under Section 562, should not be appealable. Altogether we think that if the word conviction be consistently given its ordinary sense of an adjudication of guilt the terms of the Code leave no doubt as to the answer to be given to the question raised.