Kali Kumar Mitra v. Emperor

Cunliffe, J.:— 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 Mitra 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 ss. 420 and 120B of the Indian Penal Code read together.

The right of appeal in criminal matters is a statutory one, and is primarily governed by s. 404 which forms the commencement, of Chap. XXXI of the Code of Criminal Procedure, which is headed “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 fierce.

Turning further on in the chapter, we come to s. 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 two hundred rupees.

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 s. 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 s. 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 s. 415A 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 of such persons, all or any of the persons convicted at such a trial shall have a right of appeal.

The decision to which I have just made reference is to be found in the case of Bahadur Molla v. Ismail*. There it is held that an appeal lies under ss. 407 and 408 of the Criminal Procedure Code from an order passed under s. 562, and that the restrictions imposed on ss. 413, 414 and 415 do not apply to such orders. The appeal there was from the district. The learned Judges seem to have followed a case decided in the old Chief Court of Lower Burma and three other cases all of which I think I am right in saying also dealt with appeals from the decisions of Magistrates in the mofussil. But it may be remarked that, whatever views were expressed in this judgment, no attempt was made to deal with the specific circumstances, which of course did not arise there, of a conviction and sentence under s. 411. It seems to me that these cases can be distinguished in their circumstances from the case before us now. For these reasons we propose to uphold the contention of the Crown that this case is not appealable in law under the Code. Such a decision, however, will not prevent us from considering any rights the unsuccessful appellant here may possibly have in revision and when my learned Brother has delivered his judgment, we shall take up the question of granting a Rule which is still open to the learned advocate, who appears for the appellant.

Accordingly, the appeal is dismissed.

Henderson, J.:— I agree. It never was and could not be contended that the sentence imposed upon the appellant was appealable. The contention, however, made on his behalf is that he has a right of appeal, in view of the provisions of s. 415A of the Code. The solution of that question depends upon whether the co-accused had a right of appeal against an order directing him to be released on the execution of a bond under the provisions of s. 562 of the Code.

Mr. Ray candidly conceded that there is no section in the Code which specifically provides for such a right of appeal. I should have thought that, in such circumstances, s. 404 would have, by its very terms, been decisive. Reliance was, however, placed on the decision of Bahadur Molla v. Ismail*, and we were asked to follow that decision. All I desire to say at present is that decision has no application to the present case. That decision is to the effect that ss. 407 and 408 give a right of appeal in cases of this kind. It is, therefore, sufficient to say that neither of those sections has any application to an order made by a Presidency Magistrate. Appeals in such cases are prescribed by s. 411. There is no provision for an appeal against an order under s. 562 and I am, therefore, of opinion that the present appeal is incompetent.

A.C.R.C

Appeal dismissed.