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Report No. 41

Chapter XXXI


31.1. Section 404.-

Section 404 lays down the general principle that no appeal shall lie except as provided for by the Code or any other law for the time being in force. No change is needed here.

31.2. Section 405.-

Section 405 provides that an appeal from an order rejecting an application under section 89 of the Code shall lie to the court to which appeals ordinarily lie from sentence of the court passing the order. No change is indicated here also.

31.3. Section 406.-

Under section 406, a person who has been ordered under section 118 to give security for keeping the peace or for good behaviour may appeal, if such order is made by a Presidency Magistrate to the High Court, and if made by any other Magistrate to the Court of Session. It was suggested that a proviso to this section, omitted by the amendment in 1955, to the effect that in any district specified by the State Government appeals from the orders under section 118 made by a Magistrate other than the District Magistrate or Presidency Magistrate shall lie to the District Magistrate (and not to the Court of Session) should be r.-enacted "for the effective control of criminal administration". The suggestion cannot, however, be accepted. It is not in conformity with the scheme of separation to vest appellate powers in the District Magistrate. We do not therefore recommend any change in this section.

31.4. Section 406A.-

Section 406A provides that "any person aggrieved by an order refusing to accept or rejecting a surety under section 122 may appeal against such order,

(a) if made by a Presidency Magistrate, to the High Court;

(b) if made by the District Magistrate, to the Court of Session; or

(c) if made by a Magistrate other than the District Magistrate, to the District Magistrate."

In clause (a), the formal substitution of "Metropolitan Magistrate" for "Presidency Magistrate" will have to be made. While no change is necessary in clause (b), we think that in clause (c) also, the appellate authority should be the Court of Session, and not the District Magistrate.1 The hearing of the appeal is a purely judicial function, and after separation this function ought to be vested in the Court of Session. We accordingly recommend that clauses (b) and (c) should be combined (as in section 406) to rea.-

"(b) if made by any other Magistrate, to the Court of Session."

1. The same recommendation was made by the Law Commission in its 14th Reports; see Vol. 2.

31.5. Section 407 (Repealed).-

Section 407 which was repealed in 1955, provided for an appeal to the District Magistrate from a conviction by a magistrate of the second or third class. Now, under the amended section 408, such appeals lie to the Court of Session. We think that these appeals could well be heard by the Chief Judicial Magistrate of the district. This would not only relieve the Court of Session of a certain amount of less important work but also help the Chief Judicial Magistrate in supervising the work of the junior Magistrates. 1

1. A similar recommendation was made by the Law Commission in its 14th Report: see Vol. 2.

31.6. Section 408 provides that an appeal from a sentence (including a sentence or order under section 380) passed by an Assistant Session, Judge, District Magistrate or any other Magistrate, shall lie to the Court of Session. The section is subject to two provisos. One lays down that where an Assistant Sessions Judge or a Magistrate empowered under section 30 passes a sentence of imprisonment of over 4 years the appeal shall lie to the High Court; and the other that where a Magistrate convicts a person for sedition under section 124A of the Indian Penal Code the appeal shall lie to the High Court.

In our opinion, all appeals from sentences passed by Assistant Sessions Judges, or section 30 Magistrates, irrespective of the severity of the sentences, should lie to the Court of Session. There is no need for the special provision that where the sentence passed is one of imprisonment for more than 4 years, the appeal will lie to the High Court. The load on the High Court will be lightened to a small extent by transferring these appeals to the Court of Session. (There will be no , Magistrates empowered under section 30 under our scheme).

The second proviso regarding appeal from a conviction by a Magistrate for sedition may also be omitted. Trials for sedition are rare and the appeals in question would be rarer still, in any event there is no good reason why they should not lie to the Court of Session.

The reference in the section to appeals from sentences passed by District Magistrates should be omitted as under the proposed scheme of separation District Magistrates will not hold any trials. The reference to section 380 should be replaced by a reference to section 562 as it is now proposed to combine section 380 with section 562.

31.7. Section 409.-

Under section 409(1) an appeal to a Court of Session may be heard by an Assistant Sessions Judge if it is from a conviction on a trial" held by a Magistrate of the second or third class. In view of our proposal that all such appeals should lie to the Chief Judicial Magistrate and not the Court of Session, the reference to the Assistant Sessions Judge should be omitted from section 49.

Under section 409(2), an Additional Sessions Judge hears only such appeals as the State Government directs or as the Sessions Judge makes over to him. Instead of the State Government, the High Court should be substituted, as control over subordinate courts is vested in the High Courts by the Constitution.

31.8. Section 410.-

Section 410 provides that any person convicted by a Sessions Judge or Additional Sessions Judge may appeal to the High Court. No changes are necessary here.

31.9. Section 411.-

Under section 411, any person convicted by a Presidency Magistrate may appeal to the High Court if the sentence is one of imprisonment exceeding six months or of fine over Rs. 200. This limit of no.-appealable sentences has come in for considerable criticism. It appears to equate Presidency Magistrates with the High Court for whom also the prescribed limit is six months and Rs. 200 under section 413, and to place them much above the Sessions Judge for whom the limit is fixed at one month and Rs. 50.

The historical background of this anomalous situation as well as other aspects of the question have been considered by the Commission in an earlier Report,1 wherein it was recommended that in this respect a Presidency Magistrate should be equated with a Sessions Judge and not with a High Court. We entirely agree with this view. In our opinion, the limit in both cases should be imprisonment not exceeding three months and or fine not exceeding Rs. 200.

One of the suggestions received by us is to the effect that appeals from Presidency Magistrates should lie to the Chief Presidency Magistrate, while another recommendation is that appeals from sentences passed by Presidency Magistrates upto a certain limit of imprisonment and fine should be to the City Sessions Court. The main idea behind these suggestions is to reduce the number of criminal appeals to the High Court. We are however unable to accept either suggestion since it would mean making a radical change in the character and status of the Presidency Magistrate's courts which does not seem desirable.

1. 14th Report, Vol. 2.

31.10. Section 411A.-

Section 411A deals with appeals from convictions and acquittals by a High Court in the exercise of its original criminal jurisdiction. Though it is proposed to abolish the ordinary original criminal jurisdiction of High Courts, this section, if retained, will continue to apply to trials held by a High Court in the exercise of its extraordinary jurisdiction. Since such trials are extremely rare, we feel that, in the interests of finality to the proceedings, appeals should lie direct to the Supreme Court and not to another bench of the same High Court. Instead of the present elaborate rules, we would recommend a simple provision to the effect that an appeal shall lie to the Supreme Court from a conviction in a trial held by a High Court on fact as well as law, but there will be no appeal in the event of an acquittal. If the State wishes to appeal from an acquittal by a High Court, it will have to seek leave to appeal under Article 136 of the Constitution.

Code of Criminal Procedure, 1898 Back

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