Pheku Jha vs Emperor

Atkinson, J.—This application comes before us in revision from an order of the learned Additional Sessions Judge of Muzufferpore dated the 21st March 1919.

It would appear that fifteen persons were charged before the learned Sessions Judge with an offence u/s 379, Indian Penal Code, read with section 149, Indian Penal Code.

The case was tried by Mr. Owen, the Sub-Divisional Officer of Sitamarhi, and be convicted all the accused and sentenced the accused Khobari, the ringleader, to a period of six months'' rigorous imprisonment; and of the remaining fourteen accused persons he convicted and sentenced four to pay a fine of Rs. 15 and ten to a fine of Rs. 30 respectively.

An appeal was presented to the learned Additional Sessions Judge on behalf of Khobari Koeri who had been convicted and awarded a period of six months'' rigorous imprisonment, which is an appealable sentence. It was contended on behalf of the petitioner before the learned Sessions Judge that the remaining fourteen accused who were not appellants before the Sessions Judge had no remedy in respect of their conviction and sentences save by way of reference to the High Court The learned Sessions Judge, however, held that, inasmuch as Khobari was convicted and awarded an appealable sentence that, therefore, the whole case was open in respect of all the accused persons, and that he was at liberty to consider the propriety of the conviction and sentences of the other fourteen co-accused persons other than Khobari who were convicted and awarded non appealable sentences.

The ruling of the learned Sessions Judge was challenged, and we allowed notice to issue for the purpose of considering the propriety of the aforesaid ruling of the learned Judge.

In substance the learned Judge''s ruling amounts to this, that whenever two or more accused persons are jointly tried together and one is convicted and awarded an appealable sentence, and the others are convicted and awarded non appealable sentences, and the accused entitled by virtue of his sentence to appeal does appeal; that then and in such event the whole case is open in its entirety even in favour of the accused persons who have been only awarded non-appealable sentences.

This conclusion involves a consideration of two important sections of the Code of Criminal Procedure. Section 408 in general terms confers a right of appeal in all criminal proceedings culminating in conviction and sentence and it runs as follows:--

Any parson 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 by a Magistrate of the first class, may appeal to the Court of Session.

It is not material for the purposes of this case to consider the provisos to section 408, Section 408 is only material in so far as it confers an absolute and unqualified right of appeal in all oases tried by the respective officers specified in the section itself. The important section, however, to consider is section 413 and to ascertain what bearing it has in modification of the general provisions of section 408. Section 413 provides as follow:--

Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person is cases in which a Court of Session or the District Magistrate or other Magistrate of the first class passes a sentence of imprisonment not exceeding one month only, or of fine not exceeding Rs. 50 only, or of whipping only.

Section 413, therefore, prima facie modifies and abridges the general and unqualified right of appeal conferred by section 408; and consequently section 408 must be read and construed subject to the limitations and qualifications expressed in section 413. Thus if a person be convicted of an offence and he be sentenced to a period of imprisonment of less than one month, or to pay a fine of a earn not exceeding Rs. 50, whether tried alone or jointly with others for the same offence and even though his co accused may be convicted and receive a sentence of an appealable character, yet he has no right of appeal. To hold otherwise would render section 413 meaningless. The opening words of section 413 are the governing words which control the operative construction to be given to section 413 itself. The opening words of that section are vitally important because they restrict, out down and abridge in express and general terms whatever more extended right may ostensibly have been conferred by section 408, "Notwithstanding anything hereinbefore contained."

Speaking for myself, I am satisfied that if two or more persons are tried jointly, and some are convicted and awarded non-appealable sentences and others are convicted and awarded appealable sentences, and such persona as have been convicted and awarded appealable sentences appeal, the law does not warrant under snob appeal the right to re open the trial as an appeal in favour of those persons who have been convicted and awarded non-appealable sentences.

In my opinion, there is no doubt as to what the law is as it now stands. Some debate or argument has been founded upon some subtle meaning to be attributed to the word "cases" as employed in the wording of section 413. In my opinion the word "cases" leads to no difficulty or embarrassment at all in construing section 413. I think that the word "cases" in section 413 applies to all cases, whether they be summons cases, warrant cases, or trial oases. The word "cases" is used in its widest and most extensive sense to cover the trial of all cases in respect of which an accused person may be convicted. In British India the law appears to be substantially uniform at the present-time as to the construction to be applied to section 413 read as a general modification of the wide and extensive provisions of section 408 of the Code of Criminal Procedure.

It is true that in a Full Bench ruling reported as Ba Thaw v. Emperor 9 Cri.L.J. 356 : 4 L.B.R. 354, the Chief Court of Burma took a different view to that which I have expressed, but the reasoning of that decision does not appear to me to be sound nor does it commend itself to me. Therefore, I feel unable to follow it, more especially when I have decisions of various High Courts in India which appear to me to be more in accordance with the true interpretation and construction of the Code of Criminal Procedure itself.

A note of dissent was recorded by Mr. Justice Piggot of the Allahabad High Court in the ruling reported as Lal Singh Vs. Emperor, . Mr. Justice Piggott in that case was most emphatic in his expression of opinion sitting as a Single Judge of the Allahabad High Court, that where one accused person was convicted and awarded an appealable sentence and he appealed, that by reason of such appeal the right and benefit of an appeal was also given in favour of the co-accused who were convicted and awarded non-appealable sentences. Sir George Knox of the Allahabad High Court, however, while acting as Chief Justice of that Court, declined to accede to the decision of Mr. Justice Piggott in the case previously cited, and accordingly Sir George Knox in a ruling reported as Husain Khan and Another Vs. Emperor, held that an accused person who has received a non-appealable sentence did not derive any right of appeal because of the fact that his co-accused tried jointly with him had received a sentence which was appealable. Sir George Knox decided the case as a single Judge in the year 1916. In the same volume of the Allahabad Reports will be found another case decided by Mr. Justice Piggott reported as Bhola and Others Vs. Emperor through Nihal Taga, , in which Mr. Justice Piggott unequivocally resiles from the position which he took up in the previously cited case, Lal Singh Vs. Emperor, , and there Mr. Justice Piggott said: "I take this opportunity of stating that, although I have myself expressed and acted upon the view that the provisions of section 413 aforesaid do not operate so as to take away the right of appeal, which would otherwise be conferred in any case tried by a Magistrate of the first class to the Court of Session by section 408. I find that this view has not been generally accepted in this Court and has been expressly dissented from by the present acting Chief Justice. I do not propose, therefore, further to insist on my own individual view in this matter."

Therefore, I take it that in the Allahabad High Court, at least, the matter has now been decided beyond the region of cavil or dispute. A ruling is also to be found in Reg. v. Kalubhai Meghabhai 7 B.H.C.R. (sic). That was a decision given in the year 1870; and the learned Judges constituting the Court were Westropp, C.J., and Lloyd, J. The same point there, as here, was taken and the learned Judges without hesitation set aside the order of the Sessions Judge, who had held on similar facts that a right of appeal existed on behalf of persons who were convicted and had received a non-appealable sentence, with others who had received appealable sentences, and had appealed.

Consequently, in my opinion, the order of the learned Sessions Judge was wrong in law and without jurisdiction, in so far as he dealt with the oases of the 14 accused persons who were convicted and awarded non-appealable sentence. The learned Sessions Judge should have, in the ordinary exercise of his jurisdiction so far as such accused persons were concerned, referred the matter to the High Court for its consideration in the exercise of the revisional powers vested in it. Therefore, so far as the order of acquittal of the fourteen accused persons who received non-appealable sentences is concerned as declared by the learned Sessions Judge the same must be set aside.

We indicated when we granted the Rule sought in this case that we would examine the record for ourselves for the purpose of seeing whether the case was one in which the conviction as against the aforesaid fourteen accused persons should be set aside. We have considered the judgment of the learned Sessions Judge very carefully and the judgment of the trial Magistrate, and we have examined the evidence on the record itself, and having perused the evidence and giving due weight to the considerations which have been placed before us on behalf of the petitioner, we have no hesitation in saying that we both agree in holding that the accused were properly acquitted in the sense that on the merits no conviction ought to be maintained against them. Accordingly we now, in exercise of our powers in revision, set aside the order of conviction pronounced by the learned trial Magistrate by his order dated the 7th February 1919 and direct that if the fines awarded against the aforesaid accused respectively have been paid, that the same be forthwith refunded.

Jwala Prasad, J.

The complainant Pheka Jha moves this Court for setting aside the order of acquittal of the opposite party, fourteen in number, passed by the Additional Sessions Judge of Muzafferpur by his judgment dated the 21st March 1919. These fourteen persons along with one Khobari Koeri were convicted by the Sub-Divisional Magistrate of Sitamarhi by his judgment, dated the 7th February 1919, under sections 149 and 379, Indian Penal Code. Khobari was held by the Magistrate to be the ringleader in committing the theft of the crops in question and was sentenced to six months'' rigorous imprisonment and a fine of Rs. 50. Out of the remaining 14, four were sentenced to a fine of Rs. 15 each and the rest to a fine of Rs. 30 each.

Khobari appealed to the Sessions Judge and the remaining fourteen applied to the Sessions Judge for recommendation u/s 438 to the High Court for setting aside their convictions and sentences. The learned Sessions Judge held that the complainant failed to prove that the paddy said to have been removed was sown by him and hence the charge of theft was not at all established. He acquitted Khobari, and treating the application of the remaining fourteen accused as an appeal he acquitted them as well.

Mr. Majid on behalf of the complainant contends that the order of the Sessions Judge acquitting these fourteen persons is without jurisdiction, inasmuch as the sentence passed against each of them was below Rs. 50 and hence non appealable. The contention is based upon section 413 of the Code of Criminal Procedure, which purports to enact that there shall be "no appeal in petty cases," tide the marginal note in the present Code as well as in the old Codes of 1882 and 1872. The right of appeal to the Sessions Judge is conferred by section 408 upon "any parson convicted on a trial held by an Assistant Sessions Judge, a District Magistrate, or other Magistrate of the first class, or any persons sentenced u/s 349 by a Magistrate of the first class" Section 413 purports to out-tail this right "by a convicted person in cases in which a Court of Session or the District Magistrate or other Magistrate of the first class passes a sentence of imprisonment not exceeding one month only, or of fine of Rs. 50 only, or of whipping only."

The Sub Divisional Magistrate who tried the case passed a sentence of six months against one of the accused persons and a fine of less than Rs. 50 against each of the remaining persons, so that it cannot be said that in the case tried by the Magistrate he passed a sentence not exceeding the limit prescribed by the section for an appeal. Learned Counsel, however, contends that the words in section 413 of the Code of Criminal Procedure quoted above should be construed as curtailing the power of appeal "by a convicted person" in cases in which the Courts specified in the section pass a sentence upon him such as is mentioned therein, though in the same case he may have passed a sentence beyond the said limit upon the other convicted persons. This is only possible by adding the words "upon him" after the word passes" and before the words "a sentence" in the section. We have no authority in interpreting a section to add words to the section which the legislature did not think fit to do, specially when the addition of the words would curtail an undoubted and substantial right by the Statute in clear and unambiguous terms such as the right of appeal given by section 408 of the Code. If the Legislature meant to curtail the said right of appeal, it would not have been difficult for it to do so by adding the said words in the section or in any other way.

There is another reason why we are not justified in adding any expression to the section which is not there, for the addition of such an expression would cause an obvious anomaly, inasmuch as the narrow interpretation of the section suggested by the learned Counsel would deprive an accused person, as in the present cue, who was supposed to have taken a secondary part in the offence, of the right of appeal on facts, whereas the ringleader who took a serious part in the committing of the theft would be allowed to do so and to prove his innocence by appealing on facts. We have to interpret the Statute as it is and we cannot possibly add to it nor narrow its scope, meaning and application.

It has then been suggested that the opening words in section 413 of the Code of Criminal Procedure, "Notwithstanding anything hereinbefore contained," curtail the right of appeal conferred by the preceding section 408. This is so, but the question is to what extent and in what manner section 408 is controlled by section 413. To my mind the latter section curtails the former only in cases in which there is no sentence upon any convicted person above the limit prescribed by section 413, so that if any of the convicted persons in the same case has received a punishment above that limit, the right of appeal given in section 408 upon a convicted person receiving a sentence below the limit is not at all curtailed, but that he along with the one who received a higher punishment has the right uncontrolled and uncurtailed. The interpretation is also borne out by referring to proviso (b) to section 408 of the Code. That proviso says that when in any case an Assistant Sessions Judge or a Magistrate specially empowered u/s 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal shall lie to the High Court. The words in this proviso are similar to those in section 413. Under the said proviso (b) it has been held that where some of several accused persons are sentenced to imprisonment exceeding four years, those sentenced to less terms have the right of appeal to the High Court, Palani Koravan v. Emperor 17 M.L.J. 248 : 5 Cr.L.J. 496, Hardit Singh v. Emperor 10 Ind. Cas. 278 : 161 P.L.R. 1911 : 12 Cr.L.J. 236 : 53 P.W.R. 1911 Cr., Richha and Others Vs. Emperor, and Har Dayal and Another Vs. Emperor, . This is the test how section 413 should be construed and it is, as I have said above, the maximum sentence passed upon any one of the convicted persons that determines the right of appeal in that case by the said person as well as those who received petty sentences as mentioned in that section. There has been a conflict of opinion regarding the interpretation of the section. A Full Bench of the Burma Court in the case of Ba Thaw v. Emperor 9 Cr.L.J. 356 : 4 L.B.R. 354 held that where on a trial of several persons one is awarded an appealable sentence, the others who have got non-appealable sentences may appeal. The Oudh case of AIR 1933 351 (Oudh) was to the same effect. So also the case of Lal Singh Vs. Emperor, and Emperor v. Jaisakh 33 Ind. Cas. 653 : 16 P.R. 1916 Cr. : 21 P.W.R. 1916 Cr. : 17 Cr.L.J. 173. Piggott, J., who decided the case of Lal Singh Vs. Emperor, , however, modified his view considerably in the case of Husain Khan and Another Vs. Emperor, , where a contrary view was expressed. The Madras Court has also taken a contrary view. The fact that there has been a conflict of opinion in the interpretation of the section by several eminent Judges goes to show that the section is capable of both the interpretations, and it is consonant with rules of construction of a Statute that the interpretation favourable to the right expressly conferred upon a subject should be accepted and acted upon as being the true intention and meaning of the Legislature. In this view also the right of an accused person should not be curtailed unless it is purported to be done by clear expressions in the Statute. The practice in this matter appears to be not uniform. Some of the Sessions Judges in such cases recommend to the High Court u/s 438, while the others deal with them along with the appeal of persons given sentences beyond the limit prescribed by section 413, and dispose them of themselves. In the case of Kanchan Mallik Vs. Emperor, it would appear from the facts stated therein that a convicted person who had received a fine of Rs. 25 each under two charges appealed to the Sessions Judge along with those who had received sentences of three months'' rigorous imprisonment and fines. I am, therefore, not prepared to hold with my learned brother that (be Sessions Judge had no jurisdiction to treat the application of the 14 accused persons, the opposite party, as an appeal while dealing with the Appeal of Khobari who had, undoubtedly, received an appealable sentence of six months.

Assuming for the sake of argument that the Sessions Judge should not have acquitted these persons but should have recommended their case to the High Court for acquittal, I think that the conviction of these accused by the Sub-Divisional Magistrate cannot be sustained The case is one in which the High Court is justified in going through the evidence and to see if the conviction was proper. Upon the evidence it is impossible to hold that the complainant has proved that the crop in question said to have been removed by the accused was sown by him. As a matter of fact, the trial Magistrate has disbelieved the prosecution witnesses and has held that they have not shown themselves incapable of telling falsehood in order to help out the case. He has not found that the complainant was in possession, or had sown the crop in question. Upon the finding of the trial Magistrate himself the conviction cannot be sustained and must be set aside. The High Court has got ample power u/s 439, which empowers the Court to deal with a case which has been reported for orders or "which otherwise cornea to its knowledge," and the powers given to the Court in revision are those conferred on a Court of Appeal amongst others by section 423 of the Code. It does not matter that the case has come to us upon an application made by the complainant. The record is here and this Court has got seizing of the entire case and is competent to revise the order passed by the Courts below. In a long series of oases it has been held that the High Court has power in a proper case to set aside the conviction and sentence of an accused person who did not appeal while considering the case of those who did: Queen v. Jaffir Ali 19 W.R. Cr. 57 at p. 65 and Broja Rakhal Mozumdar v. Empress 5 C.W.N. 330. Though this is not the case here, yet the principle of that ruling is that it does not matter in whatever way the record comes to the High Court, it has power of revision u/s 439.

I, therefore, agree with the order proposed by my learned brother that the application of the complainant should be rejected and that the acquittal of the accused should not at all be disturbed.