KALI KUMAR MITTER Vs. EMPEROR

JUDGEMENT

(1.) A preliminary objection which we consider to be well founded is taken by the Crown here against the competence of this appeal. It is preferred by one Kali Kumar Mitter against a sentence of six months rigorous imprisonment passed on him by one of the Presidency Magistrates for an offence of conspiracy to cheat, under Secs.420 and 120-B of the Code read together. The right of appeal in criminal matters is a statutory one, and is primarily governed by that first Section 404 which forms the commencement of Ch. 31, Criminal P.C., which is headed, Of Appeal, Reference and Revision . Section 404 is in these terms: No appeal shall lie from any judgment or order of a criminal Court except as provided for by this Code or by any other law for the time being in force.

(2.) Turning further on in the chapter, we come to Section 411, the section appropriate to this particular conviction. Section 411 is in these terms: Any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court, if the Magistrate has sentenced him to imprisonment for a term exceeding six months or to fine exceeding Rs. 200.

(3.) No other section that I know of in the appeal, reference and revision chapter of the Code can rightly be considered as being appropriate from the point of view of procedure, to this conviction and sentence before us now. Reliance was placed upon the circumstance that a co- conspirator of the present appellant was the subject of an order under Section 562 of the Code, that section which deals with the binding over of first offenders. And it was contended that because there is a decision of a Bench of this Court that an order under Section 562 is an appealable order, therefore the right of the co-conspirator, who was the subject of this direction as a classified first offender, ought to attract the same right of appeal to the present appellant. That argument is based upon the wording of Section 415-A of the Code which runs as follows: Notwithstanding anything contained in this chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any such persons all or any of the persons convicted at such a trial shall have a right of appeal.