Manohar Lall, J.:— This is an application in revision by three persons who were convicted under section 447 of the Indian Penal Code and sentenced to pay a fine of Rs. 50 each, two of the petitioners, Dargahi and Suba Khan, were also convicted under section 323 of the Indian Penal Code and sentenced to pay a fine of Rs. 25 each by a Magistrate in a summary trial under the provisions of Chapter XXII of the Code of Criminal Procedure. On appeal the learned Sessions Judge took the view that as the aggregate fines imposed upon the petitioners did not exceed Rs. 200 no appeal lay to him. He also refused to make a reference to this Court under section 435 of the Code of Criminal Procedure.

It is argued on behalf of the petitioners that the learned Judge was wrong in holding that the appeal before him was incompetent. It is submitted that under section 414 of the Code of Criminal Procedure, as it now stands, after the amendment of 1923, read with section 415, the appeal was competent, because the Magistrate has passed two sentences of fine which come within the words

“by which any two or more of the punishments therein mentioned are combined”

As provided by section 415. I do not agree with this argument. The case-law is almost unanimous.

In Akabbar Ali v. Emperor Cuming, J. held that when a first class magistrate passed two sentences of fine, each of Rs. 40 only, under two sections of the Indian Penal Code, on two accused and one such sentence on each of the remaining two accused, an appeal lay to the Sessions Judge both with regard to the former and also with regard to the latter. It will be noticed that the appeal was held to be competent, because the aggregate of sentences of fine in the case of those accused who were convicted under both sections of the Penal Code exceeded Rs. 50.

In the case of Nawabali Haji v. Jainab Bibi Mitter, J. held that the words “a sentence of fine” in section 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. He pointed out that “where two sentences of fine are passed, it is the aggregate which is to be looked into for the purpose of determining the right of appeal.”

The same view was taken by the Bombay High Court in the case of Shidlingappa Gurulingappa…Accused Applicant; v. Emperor…Opposite Party.. In that case the Magistrate passed two sentences of fine amounting in the aggregate to Rs. 80. The learned Chief Justice (Sir Norman McLeod) observed: “Therefore, in effect, a sentence of fine exceeding fifty rupees has been passed and an appeal lies.”

In Paluvadi Venkataramayya, In re the learned Judges approved of the decision of the Calcutta High Court in the case of Nawabali Haji v. Jainab Bibi, referred to above and also the views of the Bombay High Court in the case of Shidlingappa Gurulingappa…Accused Applicant; v. Emperor…Opposite Party., also cited above. In that case twenty-four persons were convicted under various sections of the Indian Penal Code, but, considering that they were persons who might properly be dealt with under section 562 of the Code of Criminal Procedure, their cases were referred to a first class magistrate who convicted them of the offence of rioting and sentenced them to pay a fine of Rs. 25 each; but he also convicted two of the accused under section 355 of the Indian Penal Code and sentenced them to pay a fine of Rs. 25 each. It was held that none of these twenty-four accused had any right of appeal, and the argument that, as two sentences of fine were passed, there was a right of appeal, was negatived.

Reliance is placed on behalf of the petitioners on the decision in Makrand Singh v. Ganga where the learned Judges took the view that the punishments referred to in section 415 of the Code of Criminal Procedure include not only punishments of different kinds but also punishments of the same kind. This case has been expressly disapproved in the Calcutta and Madras High Courts in the cases which I have referred to and also in another Calcutta case, Kali Charan Sardar v. Adhar Mandal.

In my judgment the view taken by the Calcutta and Madras High Courts is the correct view and must be adopted in this Court. If the provisions of section 53 of the Indian Penal Code are kept in view, the matter becomes quite clear. Punishments are of different kinds, e.g, a sentence of imprisonment, a sentence of fine and a sentence of whipping. What the legislature intended was that an appeal should be allowed to be brought against any sentence by which two or more punishments stated in section 413 or 414 are combined. But the punishment, which is referred to in section 414, is merely a sentence of fine. It does not refer to any other punishment, because by the amendment whipping and imprisonment have been omitted. We pointed out to the learned Counsel for the petitioners that if his argument was correct an appeal would lie where a court of session passed two sentences of fifteen days rigorous imprisonment each under two different sections of the Indian Penal Code; although this was expressly forbidden by section 413 of the Code of Criminal Procedure. He realised his difficulty but submitted that the amendment to section 414 of the Code of Criminal Procedure, which was not followed by an amendment to section 415, entitles him to put forward that submission as sound. But as was pointed out by Edgley, J. in Kali Charan Sardar v. Adhar Mandal the presence of the words ‘two or more’ in section 415 “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 section 415 escaped the notice of the legislature. The fact remains, however, that as the sections now stand, two punishments are mentioned in sections 413 and 414, viz., the punishments of imprisonment and fine and as pointed out above, section 415, I think, only refers to a combination of those particular punishments.”

For these reasons I overrule the contention and hold that the appeal to the learned Sessions Judge was not competent.

I now proceed to consider whether any ground has been made out for revising the conviction and sentence imposed upon the petitioners.

The case of the prosecution was that on the 30th of August, 1941, these accused persons entered upon 8 kathas of land being the eastern portion of plot no. 83 which contained paddy transplanted on behalf of Babu Kailash Behari Lal and began to re-plough it. The complainant Faujdar Mahto, who is a peon of Babu Kailash Behari Lal, remonstrated and was his with lathis by the accused Dargahi and Suba. It is common ground that there is a dispute between Babu Kailash Behari Lal and Harinarain Lal, co-sharer landlords of village Karup, police-station Sasaram, in which this land lies. Both the parties claim that the land is in possession of their respective maliks.

The defence was that the prosecution story is false, that the land in dispute is in the possession of their landlord Babu Harinarain, but what really happened on the day of the occurrence was that the accused Dargahi was assaulted by Kailash Behari Lal and that this case was brought as a counter-blast to the case filed by Dargahi Koiri against Narain Koiri and others.

The Sub-divisional Officer was examined as the fifth witness for the prosecution. He said that the complainant alleged before him that the land in question contained the transplanted paddy, while the accused contended that it was fallow. In order to verify this, he deputed an Honorary Magistrate to make an inquiry; but this officer found that the disputed land actually contained transplanted green paddy and was not lying fallow.

The learned Magistrate who tried the case, has proceeded almost entirely upon the opinion of the Honorary Magistrate. He also relies strongly upon three judgments (Exhibits 1, 2 and 3) from which he concludes that the land in dispute was actually in possession of the master of the complainant and that the master of the accused was unnecessarily giving trouble. But these judgments do not establish that the complainant transplanted paddy on the land at the relevant period. They refer to the incidents which took place some time back. In one of the judgments, which was placed before us, a complaint filed by the accused in the present case was dismissed but that is no evidence of possession at all.

Further, I do not see any discussion of the evidence in this case from which I can conclude that the learned Magistrate has believed the oral evidence and has come to a finding that the land was in possession of the complainant on the date of the occurrence in the present case. All that the learned Magistrate says is:

“The evidence of the prosecution witnesses narrated above fully proves the prosecution story. I do not see sufficient reason to discredit their testimony.”

In this sentence there is no trace of any reference to possession of any land. The sentence rather appears to show that the learned Magistrate was convinced that the story of assault was true, because he proceeds in the next sentence to consider the defence argument that the prosecution has not adduced any medical evidence to prove injuries on the person of the complainant.

For these reasons I am of the opinion that the conviction of the accused under section 447 of the Indian Penal Code cannot be maintained. They must be acquitted of that Charge and the fines, if paid by them, will be refunded. But I am satisfied that the petitioners Dargahi and Suba Khan have been correctly found to be guilty under section 323 of the Indian Penal Code and the fines imposed under that section, which are not excessive, are maintained.

The result is that all the petitioners are acquitted of the charge under section 447 of the Indian Penal Code and the fines imposed under that section, if paid by them, will be refunded. The conviction of Dargahi and Suba Khan under section 323 of the Indian Penal Code, are maintained and the fines imposed upon them of Rs. 25—in default to suffer rigorous imprisonment for six weeks—each are maintained. Out of the fines, if paid, fifteen rupees will be paid as compensation to the complainant under section 545 of the Code of Criminal Procedure.

Chatterji, J.:— I agree.

S.A.K

Order accordingly.