Emperor vs Madhav Raghvendea Kulkarni

Norman Macleod, Kt., C.J.—The three accused were convicted by the First Class Magistrate of Bagevadi of an offence u/s 352, Indian Penal Code. Accused No. 1 was sentenced to pay a fine of Rs. 30. Accused Nos. 2 and 3 were ordered, under a. 562, Criminal Procedure Code, to enter into a bond of Rs. 50 each to appear and receive sentence when called upon during six months, and in the meantime to keep the peace and be of good behaviour.

All the three accused appealed to the Court of Session. As the sentence on accused No. 1 was not originally appealable, it became appealable u/s 415A, Criminal Procedure Code, if the order against accused Nos. 2 and 3 was appealable.

The Sessions Judge raised the following issue :-

Does an appeal lie against the conviction u/s 332, Indian Penal Code, and the order u/s 562, Criminal Procedure Code, passed against accused Nos. 2 and 3?

He held that no appeal lay, He referred to Section 413, Criminal Procedure Code, which states :-

Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a Court of Session 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 6rst class passes a sentence of fine not exceeding fifty rupees only.

The learned Judge considered that it would be in the highest degree illogical that a sentence of security in Rs. 50 should be appealable when a substantive sentence of fine of Rs. 50 was not appealable. We are not concerned with the question whether the Acts of the legislature are logical or not. We have only got to consider the proper construction to be put upon the relevant sections of the Criminal Procedure Code.

Section 408, Criminal Procedure Code, states:-

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 u/s 349 or in respect of whom an order has been made or a sentence has been passed u/s 380 by a Magistrate of the first class, may appeal to the Court of Session.

Accused Nos. 2 and 3 had been convicted by the First Class Magistrate. Accordingly, they might appeal to the Court of Session. But, if they had been sentenced to a fine not exceeding Rs. 50, their right of appeal would have been taken away by Section 413, Criminal Procedure Code. They have not been sentenced to a fine at all An order has been made against them that they should be released on their entering into a bond to be of good behaviour.

We have been referred to the marginal note to Section 408, Criminal Procedure Code, which is as follows:-

Appeal from sentence of Assistant Sessions Judge or Magistrate of the first class.

But a marginal note is not part of the section, and one cannot correct an obvious reading of the section by referring to the marginal note.

Ordinarily, then, the accused would be entitled to appeal against their conviction, In Bahadur Molta v. Ismajil ILR (1924) Cal. 463 it was held that an appeal lay under as. 407 and 408, Criminal Procedure Code, from an order passed u/s 562(1). We agree with that; decision. We must remand the case to the Sessions Judge to hear the appeal.