Dargahi and Others vs Emperor

Manohar Lall, J.—This is an application in revision by three persons who were convicted u/s 447, Penal Code, and sentenced to pay a fine of Rs. 50 each; two of the petitioners Dargahi and Suba Khan, were also convicted u/s 323, Penal Code, J and sentenced to pay a fine of Rs. 25 each by a Magistrate in a summary trial under the provisions of chap. 22, Criminal P.C.

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 u/s 435, Criminal P.C. 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 u/s 414, Criminal P.C., 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 and Others Vs. 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 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 Nawab Ali Hazi and Another Vs. Joinab Bibi, Mitter, J. held that the words "a sentence of fine" in Section 413, Criminal P.C., 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 Shidlingappa Gurulingappa Vs. Emperor, . 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 In re Venkataramayya AIR 1940 Mad. 111 the learned Judges approved of the decision of the Calcutta High Court in Nawab Ali Hazi and Another Vs. Joinab Bibi, referred to above and also the views of the Bombay High Court in Shidlingappa Gurulingappa Vs. Emperor, also cited above. In that case twenty-four persons were convicted under various sections of the Penal Code but, considering that they were persons who might properly be dealt with u/s 562, Criminal P.C., 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 u/s 355, 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 AIR 1937 524 (Oudh) where the learned Judges took the view that the punishments referred to in Section 115, Criminal P.C., 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 Vs. Adhar Mandal and Others, .

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, 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 Section 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 have 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 15 days rigorous imprisonment each under two different sections of the Penal Code; although this was expressly forbidden by Section 418, Criminal P.C. He realised his difficulty but submitted that the amendment to Section 414, Criminal P.C., 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 Vs. Adhar Mandal and Others, 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. (His Lordship considered the case on merits and proceeded.) For these reasons I am of the opinion that the conviction of the accused u/s 447, 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 u/s 323, 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 u/s 447, Penal Code, and the fines imposed under that section, if paid by them, will be refunded. The conviction of Dargahi and Suba Khan u/s 323, 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 u/s 545, Criminal P.C.

Chatterji, J.

I agree.