EMPEROR Vs. BHIMAPPA ULVAPPA

JUDGEMENT

(1.) In this case notices were issued to the District Magistrate and the appellant, but there is no appearance. The facts which have given rise to this reference are briefly these: The accused was tried on a charge under Section 379 of the Indian Penal Code by a Second Class Magistrate. The Magistrate convicted the accused; but being of opinion that it was a case, to which the provisions of Section 562 of the Criminal Procedure Code might be applied, under the proviso to that section he submitted the proceedings to a Magistrate of the First Class on the 22nd February 1915. The First Class Magistrate then, acting under Section 380 of the Code, passed an order on the 4th March 1915 convicting the accused and sentencing him to rigorous imprisonment for one month and a fine of Rs. 25. The accused appealed to the Court of Session against this order of the First Class Magistrate. The learned Additional Sessions Judge, before whom the appeal came on for hearing, however, held that the appeal would not lie to his Court, but to the District Magistrate under Section 407, Criminal Procedure Code, as he was of opinion that originally there was in this case a conviction by the Second Class Magistrate, and that that was the conviction from which an appeal could be and ought to be preferred. When the matter came by way of appeal before the Sub-Divisional Magistrate he was of opinion that the appeal really lay to the Court of Session, and accordingly submitted the papers to the District Magistrate in order that a reference may be made, if necessary, to this Court. The District Magistrate has now made a reference to this Court, and we have to consider the question, whether in this case an appeal lies to the District Magistrate from the Second Class Magistrate s order of conviction or whether it lies to the Court of Session from the conviction and sentence passed by the First Class Magistrate under Section 380 of the Code.

(2.) It seems to me to be clear under the provisions of Section 380 that when a case is submitted to a Magistrate of the First Class or a Sub-Divisional Magistrate as provided by Section 562, that Magistrate may, thereupon, pass such sentence or make such order as he might have passed or made if the case had originally been heard by him. It follows, therefore, that for the purposes of appeal ultimately the conviction recorded is a conviction by the First Class Magistrate or the Sub-Divisional Magistrate and the sentence passed also is unquestionably a sentence passed by that Magistrate. Under Section 408, therefore, the appeal lies to the Court of Session in this case, as the order of conviction and sentence complained of and to be complained of is passed by a First Class Magistrate under Section 380.

(3.) The view taken by the Additional Sessions Judge involves a curious anomaly. According to him there would be an appeal from a conviction by a Second Class Magistrate to the District Magistrate, at a time, when there would be no sentence to appeal from and when the proceedings might be pending before a First Class Magistrate, under Section 380 of the Criminal Procedure Code with powers to consider the propriety of that very conviction. Further there would be either no appeal from the sentence or an appeal to the Court of Session when an appealable sentence is passed by a First Class Magistrate under Section 380 of the Code. I do not see any indication in the Code to justify such a dissociation of conviction from sentence in one and the same case. I do not think that the scheme of the Code favours any such view, nor can I think that the proper interpretation of Sections 380 and 562 leads to any such result.