Mayandi Nadar vs Pala Kudumban and Others

Curgenven, J.—The question raised in this case is whether an order passed by a Court u/s 562, Criminal Procedure Code, is appealable.

The petitioner was complainant in a case in which four persons were convicted of breaking into a shop at night and committing theft, under

Sections 457 and 380, Indian Penal Code. The first and second accused were boys aged 12 and 15 respectively and the Stationary Sub-

Magistrate who convicted them released them after due admonition under Sub-section 1-A, of Section 562. The third accused was of mature

years and received a fine of Rs. 25. The fourth and last accused was a youth aged 17, and he was released u/s 562(1) on entering into a bond with

one surety. The accused two to four preferred an appeal and the learned Sessions Judge who disposed of it has, we think, rightly held that the

release after admonition of the second accused was illegal because Sub-section 1-A does not apply to a case of house-breaking and further that

the sentence of fine alone imposed upon the third accused was illegal because Section 457, Indian Penal Code, makes a sentence of imprisonment,

with or without fine, compulsory. In the result he set aside the orders of the Court below, thereby acquitting the accused, and left the matter there,

considering the case not of sufficient gravity to merit further action.

Mr. Jayaram Aiyar for the petitioner argues that no appeal lay from the orders of the Stationary Sub-Magistrate (who it may be explained

exercises first class powers) to the Sessions Judge. We may take it that no appeal would lie from the order imposing a fine u/s 457, Indian Penal

Code, although it was an illegal order, because such an appeal would be excluded by the terms of Section 413, Criminal Procedure Code. The

question then is whether an order u/s 562 is appealable. If it is appealable the other persons convicted at the trial would have a right of appeal u/s

415-A.

u/s 404 no appeal lies from any judgment or order except as provided for by the Code, and u/s 408 any person ''convicted'' on a trial held by a

Magistrate of the first class may appeal to the Court of Session, subject to the qualifications as regards minimum sentence contained in Sections

413 and 414. Section 562, provides that a first offender dealt with under its provisions must first be ''convicted''; and if the word ''convicted'' is

used in the same sense in that section and in Section 408 there can be no escape from the conclusion that a person dealt with u/s 562 has a right of

appeal. The argument that Section 423, which defines the powers of an appellate Court in disposing of an appeal, does not contain any provision

for setting aside an order u/s 562 does not, we think, avail to affect that conclusion. The language of Section 423 has remained unchanged since

the Code of 1882, which contains no provisions similar to those of Section 562. It is unnecessary to regard Section 423 as an exhaustive statement

of the powers of an appellate Court or to hold that an appeal from a conviction can only be entertained when the conviction is accompanied by a

sentence. On the other hand Section 408, renders an order made or sentence passed u/s 380, Criminal Procedure Code, appealable - an

amendment inserted in 1923 probably in consequence of doubts such as arose in Emperor Vs. Bhimappa Ulvappa, and it is difficult to see why if

an order u/s 380 is appealable an order u/s 562, should not be appealable. Altogether we think that if the word ''conviction'' be consistently given

its ordinary sense of an adjudication of guilt the terms of the Code leave no doubt as to the answer to be given to the question raised.

The petitioner''s learned Advocate has endeavoured to create a doubt as to the meaning of the word ''conviction'' by referring to certain English

cases, but they do not support him in his main contention. In Burgess v. Boetefeur (1844) 7 M.G. 481 : 135 E.R. 193, certain persons had

pleaded guilty to keeping a disorderly house. The judgment was respected that the nuisances might in the meantime be abated, and this having been

done, the parties were afterwards brought up for judgment, when they were each fined Is. and discharged. The question was whether the

conviction took place when the defendants pleaded guilty, or when they were brought up and received sentence. Tindal, C.J., observed that the

word ''conviction'' was undoubtedly verbum acquivocum, being sometimes used as meaning the verdict of a jury and at other times in its more

strictly legal sense for the sentence of the Court. But he decided that in the case before him it must mean the judgment of the Court. We propose

no other meaning here. Another case under the same statute was Jephson v. Barkers 3 T.L.T. 40. There the defendant pleaded guilty and was

ordered to enter into his recognizances to come up for judgment when called on. Stephen, J., held that there had been a judgment that is to say,

there had been an order of the Court that the prisoner should enter into his recognizance to come up for judgment if called upon.

This case, as Mr. Jayaram Aiyar has to admit, is directly against him. In the third case, Hartley v. Hindmarsh (1866) 1 C.P. 553 it was held that

there was no conviction as the order passed was not an adjudication upon the case.

Several decisions have held that an order u/s 562 is appealable. In Emperor v. Hiralal ILR (1924) 46 All. 828. Boys, J., in so deciding, notices

an objection which has been suggested here too why should an order u/s 562, which involves no sentence, be appealable when a first class

Magistrate can pass an unappealable sentence of fine up to a certain amount. We can see nothing very anomalous in this. The general effect of the

relevant provisions of the Code has been reviewed by Mukerji, J., in Bahadur Molla v. Ismail ILR (1924) 52 Cal. 463. This case has been

approved and followed in Madhav Raghvendra Kulkarni Vs. Emperor, . All these judgments are subsequent to the amendment of Section 408 by

Act XVIII of 1923.

We hold that an appeal lay to the Sessions Judge from the orders passed u/s 562 and also therefore, by force of Section 415-A, from the

sentence imposed u/s 457, Indian Penal Code. This being the only point taken in revision, we conclude that there is no sufficient reason to interfere

with the judgment of the Court below. The Criminal Revision Petition is dismissed.