In Re: Paluvadi Venkatramayya alias Paluvadi venkataramanayya

Burn, J.—This is an application for revision of the order of the learned Sessions Judge, Kurnool, in C.A. No. 7 of 1939. That appeal was

presented to the learned Sessions Judge from the decision of the Sub-Divisional First Class Magistrate, Markapur, in C.C. No. 48 of 1938. In that

case the First Class Magistrate was dealing with twenty-four persons who had been tried by the Stationary Second Class Magistrate of Giddalore

in C.C. No. 593 of 1937. The learned Sub-Magistrate found all the 24 accused persons guilty of rioting (Section 147 of the Indian Penal Code),

wrongful confinement (Section 341 of the Indian Penal Code), assault with intent to dishonour ""(Section 355 of the Indian Penal Code) and simple

hurt (Section 323 of the Indian Penal Code) read with Section 149 of the Indian Penal Code. He convicted them under those sections but

considering that they were persons who might properly be dealt with u/s 380, Criminal Procedure Cole, he submitted the case to the Sub-

Divisional Magistrate under the provisions of Section 562(1) proviso. The learned First Class Magistrate dealing with the case under the provisions

of Section 380. Criminal Procedure Code, convicted all the 24 accused of rioting (Section 147, Indian Penal Code) and sentenced them for that

offence to pay a fine of Rs. 20 each and accused Nos. 6 and 24 be convicted also u/s 355, Indian Penal Code and sentenced them to pay a fine of

Rs. 25 each for that offence. The learned Sub-Divisional Magistrate did not say what he proposed to do with regard to the other convictions which

had already been recorded by the Sub-Magistrate. But that is a matter which is not before us now and we do not propose to interfere with it.

The appeal presented to the learned Sessions Judge was on behalf of the 23rd accused only. He had been convicted only of rioting (Section

147, Indian Penal Code) and sentenced to pay a fine of Rs. 20. u/s 413, Criminal Procedure Code, the 23rd accused would ordinarily have no

right, of appeal but the appeal was filed on his behalf under the provisions of Section 415-A. It was alleged that the 6th and 24th accused, having

been sentenced to pay two fines of Rs. 20 and Rs. 25 had a right of appeal u/s 415-A and therefore the 23rd accused having been convicted at

the same trial had also a right of appeal. The learned Sessions Judge has held that none of the 24 accused had any right of appeal in this case. He

therefore rejected the appeal referring the 23rd accused to an application for revision to this Court if so advised. The 23rd accused has applied for

revision of the order of the learned Sessions Judge.

The only authority of this Court quoted by learned Counsel for the petitioner is the decision of Mr. Justice King in the case of Public Prosecutor,

Madras v. Kollur Dasa Pai (1936) M.W.N. 213. That was a case in which on a summary trial a first class Bench of Magistrates had sentenced

one of several persons convicted under the Gaming Act to pay a fine of Rs. 25 for an offence u/s 9 and a fine of Rs. 50 for an offence u/s 8. The

persons convicted appealed to the Sessions Judge and he held that an appeal lay. The learned Public Prosecutor filed a revision petition against the

it decision and Mr. Justice King held that the learned Sessions Judge''s decision was correct.

With respect we think that the decision of Mr. Justice King in that case was wrong. The matter depends upon the interpretation of Section 415,

Criminal Procedure Code, which says:

An appeal may be brought against any sentence referred to in Section 413 or Section 414 by which any two or more of the punishments therein

mentioned are combined, but no sentence which would not otherwise be liable to appeal shall be appealable merely on the ground that the person

convicted is ordered to find security to keep the peace.

It is contended on behalf of the petitioner that the learned Sub-Divisional Magistrate when he imposed upon the 6th and 24th accused two fines

of Rs. 20 and Rs. 25 respectively was passing a sentence combining two of the punishments referred to in Section 413. Now Section 413 is as

follows:

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 First

Class-passes a sentence of fine not exceeding rupees fifty only.

There are two punishments here mentioned (1) imprisonment and (2) fine. But it is pointed out that in Section 415 there is a reference to ""any

two or more"" of the punishments mentioned in Section 413 or Section 414 and since in Section 413 there are only two kinds of punishments

mentioned and in Section 414 there is one kind of punishment mentioned, namely, the punishment of fine, it is argued that if there are two or more

sentences of fine this must be regarded as a sentence combining two of the punishments mentioned in Section 413 or Section 414. We are unable

to accept this argument. We are of opinion that Section 415 when it refers to two-or more punishments is referring to two or more punishments of

different kinds. The history of the Code is we think important in this connection and makes the matter clear. When Section 415 was just enacted

there were three kinds of punishments provided in both Sections 413 and 414, namely, in Section 413 a sentence of imprisonment not exceeding

one month only, fine not exceeding Rs. 50 only or whipping only and in Section 411 a sentence of imprisoment not exceeding three months only,

fine not exceeding two hundred rupees only or whipping only. In those circumstances although it might possibly be argued that Section 415 was to

some extent superfluous, it could not be argued that it had no meaning. It was clear that it meant to refer to sentences in which two or more

different kinds of punishments referred to in Section 413.and Section 414 were combined. After the modifications in Section 413 and Section 414

introduced in 1923 it is impossible to attribute any real meaning to the phrase ""any two or more of the punishments therein mentioned"" in Section

415 '' so far as it relates at any rate to Section 414. It is clear we think as Mr. Justice Edgley stated in the case of Kali Charan v. Adhar Mandal

43 C.W.N. 360 that Section 415 has 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. Learned Counsel for the petitioner has relied upon two decisions of the Oudh Chief Court reported in

Kandhai v. King Emperor ILR (1931) 7 Luck. 501 and Makrand Singh v. Ganga ILR (1937) 13 Luck. 618 and also upon the decision of Mr.

Justice Cuming in the case reported in Akabbar Ali v. Emperor ILR (1931) 59 Cal. 19. With respect we are not able to agree with those

decisions. We prefer the opinion of Mr. Justice Mitter in the case reported in Nazvabali Haji v. Jainab Bibi ILR (1932) 59 Cal. 1131 and the view

of the learned Chief Justice of Bombay and Mr. Justice Crump in the case reported in Shidlingappa Gurulingappa Vs. Emperor, . Our decision can

be rested upon the words of Section 415 itself. It is not possible in this case to say that the learned Sub-Divisional Magistrate has passed any

sentence by which any two or more of the punishments mentioned in Section 413 are combined. The learned Sub-Divisional Magistrate did not

combine any of the punishments in either of the sentences that he imposed. He imposed two separate sentences of fine. There is no combination of

punishments in one sentence within the meaning of Section 415, Criminal Procedure Code. We think therefore that the learned Sessions Judge was

correct and that this application for revision must be dismissed.

Learned Counsel for the petitioner has attempted to persuade us to interfere in revision finally against the order of the learned Sub-Divisional

Magistrate. That is not the prayer in the petition which is for revision of the order passed by the learned Sessions Judge. But in so far as this is

concerned we observe that the grounds taken for saying that the learned Sub-Divisional Magistrate was wrong in convicting the 23rd accused

(present petitioner) are all grounds of fact and not connected with any question of law. Learned Counsel points out that the Sub-Magistrate who

tried the case recommended that all the accused should be dealt with u/s 562, Criminal Procedure Code. Bui the learned Sub-Divisional

Magistrate has given reasons for not dealing with them under that section and we do not think that there are sufficient grounds for interfering with

the exercise of his discretion. We cannot interfere with the conviction on the facts. The 23rd accused was convicted of rioting and let off with a fine

of Rs. 20 which cannot be said to be excessive.

This petition is therefore dismissed.