KISHORI SINGH Vs. EMPEROR

JUDGEMENT

(1.) The question in this Rule is whether an appeal to the Court of Sessions was barred under Section 413, Criminal P.C. The facts of the case may be briefly stated: The two petitioners were put upon their trial before a Sub-Deputy Magistrate of Howrah on charges of causing hurt under Section 323, I.P.C. The Sub. Deputy Magistrate was of opinion that the petitioners were guilty, and further, that they should be required to execute bonds under Section 106, Criminal P. C, but as being a Magistrate of the Second Class, he was not competent to make an order under this section, he dealt with the case under Section 349 of the Code, and submitted the proceedings to the Sub-divisional Magistrate who was a Magistrate of the First Class.

(2.) The Sub-divisional Magistrate did not find it necessary to take further evidence, and agreeing with the Sub.Deputy Magistrate, found the accused guilty under Section 323. I.P.C., and sentenced each of them to pay a fine of Rs. 25, in default to undergo rigorous imprisonment for six weeks, and also made an order under Section 106, Criminal P. C, requiring each to execute a bond for Rs. 100 with one surety of like amount to keep the peace for one year, in default to undergo simple imprisonment for the same period. Against this conviction and sentence, the petitioners appealed to the Court of Session, but the learned Additional Sessions Judge who heard the appeal dismissed it as incompetent. The present Rule is directed against this order of dismissal. It is well settled that the right of appeal is a creature of statute, and this is expressly recognized in the Criminal P. C. in Section 404, which lays down that no appeal shall lie from any judgment or order of a criminal Court except as provided for by the Code or by any other law for the time being in force. It was therefore for the petitioners to show under which section of the Code or of any other law they claimed the right of appeal. The section of the Code on which they relied for the purpose was Section 408, which may be set out (omiting the proviso which is not relevant): Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by a Magistrate of the First Class, may appeal to the Court of Session.

(3.) The petitioners are persons sentenced under Section 349 by a Magistrate of the First Class, and if Section 408 stood alone, they would as such undoubtedly have a right of appeal. The question however is as to the effect of Section 413, which provides as follows: Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a Court of Sessions passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or District Magistrate or other Magistrate of the First Class passes a sentence of fine not exceeding Rs. 50 only.