The Judgment of the Court was as follows:—
In this case the Petitioners were convicted by the Sub-Divisional Magistrate of Satkhira under secs. 147 and 323 of the Indian Penal Code and were sentenced to pay fines of Rs. 10 each or in default to suffer rigorous imprisonment for 10 days under each of those sections. An appeal was preferred against this decision to the Sessions Judge of Khulna. From his letter of Reference it appears that the learned Judge was doubtful whether an appeal actually lay to him or not with regard to this matter. He therefore decided to treat the appeal as a petition for revision and he has referred the case to this Court with a recommendation that the sentences passed upon the Petitioners should be set aside.
The first point for decision in connection with this matter is whether or not an appeal lay to the Sessions Judge against the order passed, by the Sub-Divisional Magistrate of Satkhira. The only one ground upon which it could be held that an appeal lay to the learned Judge would be to hold that an appeal lies under sec. 415 of the Code of Criminal Procedure, when two or more non-appealable sentences of fine are combined. There is a decision of the Oudh Chief Court in favour of this proposition, namely, in the case of Makcrand Singh v. Ganga in which it was held that sec. 415 of the Criminal Procedure Code allowed an appeal not only when punishments of different kinds were combined but also in the case of the combination of punishments of the same kind. A different view was taken in this Court with regard to this matter by Mr. Justice Mitter in the case of Nawabati Haji v. Jainab Bibi in which the learned Judge held that the words “a sentence of line” in sec. 413 of the Code of Criminal Procedure must be held to include the cases where the aggregate sentence does not exceed a fine of Rs. 50. It would follow, therefore, according to the view held by Mr. Justice Mitter, that there can be no appeal in which the aggregate combined sentences do not exceed Rs. 50. With this view I agree.
Sec. 415 of the Code of Criminal Procedure provides that an appeal may be brought against any sentences referred to in secs. 413 and 414 by which any two or more of the punishments mentioned therein are combined. The punishments mentioned in secs. 413 and 414 are imprisonment and fine. In this connection it is significant that in sec. 414 of the Code of Criminal Procedure as the section stood before it was amended in 1923, another punishment was also mentioned, namely, whipping. To my mind the combination of punishments which is contemplated by sec. 415 of the Code, as these sections now stand after the amendment of 1923, refers to a combination of the punishments of imprisonment and fine, but this section in my opinion can have no application in a case in which two non-appealable sentences of fine have been passed and the aggregate amount of fine does not exceed Rs. 50.
The learned Judges who decided Makrand Singh's case cited above, refer to the difficulty created by the presence in sec. 415 of the Code of the words “two or more” when only two punishments are mentioned in secs. 413 and 414. In my view the presence of these words in the section must be due to the fact that at the time when the amending Act of 1923 was passed and sentences of whipping were made appealable, the necessity of making a slight consequential amendment in sec. 415 escaped the notice of the legislature. The fact remains, however, that as the sections now stand, two punishments are mentioned in secs. 413 and 414, viz., the punishments of imprisonment and fine and as pointed out above and sec. 415, I think, only refer to a combination of those particular punishments. In this view of the case I do not consider that an appeal lay to the learned Sessions Judge. Therefore he had no option but to refer this case to this Court.
The Reference is accepted for the reasons set forth in the letter of the Sessions Judge, dated the 14th November, 1938. The conviction and sentences passed upon the Petitioners are set aside. The fines, if already paid, will be refunded.
P.C