Research › Browse › Judgment

Allahabad High Court · body

1944 DIGILAW 193 (ALL)

S. M. Chopra v. S. M. Hameed

1944-10-13

BENNETT

body1944
JUDGMENT Bennett, J. - This is an application in revision against an order passed by the learned Sessions Judge of Lucknow dismissing the applicant's revision application against his conviction u/s 500 of the Indian Penal Code. 2. The application before the Sessions Judge was dismissed by him on the ground that an appeal lay against the conviction and consequently no application in revision lay. 3. The learned Sessions Judge cited the cases of Bahadur Molla and Others Vs. Ismail and Another, AIR 1925 Cal 329 ; Mayandi Nadar Vs. Pala Kudumban and Others, AIR 1935 Mad 157 ; and Madhav Raghvendra Kulkarni Vs. Emperor, AIR 1926 Bom 382 , in support of the view that an appeal lies where an order has been passed u/s 562 of the Code of Criminal Procedure. In the present case the order was passed under the First Offender's Probation Act. The Sessions Judge observed Section 562(1)(a) corresponds to Section 3 of the First Offender's Probation Act of 1938. 4. I have examined the rulings cited and see no reason why they should not be followed. 5. Learned Counsel has put forward two arguments. The first is that in the cases cited the question was whether an appeal lay against an order u/s 562 of the Code of Criminal Procedure, whereas in the present case the question is whether an appeal lies against an order passed under the First Offender's Probation Act. The provisions are analogous and rulings given in respect of Section 562 are therefore clearly relevant in considering an order passed under the First Offender's Probation Act of 1938. 6. Secondly the learned Counsel referred to Section 413 of the Code of Criminal Procedure as indicating that there can be no appeal in petty cases. The section provides that there shall be no appeal where a sentence of imprisonment is less than one month or a sentence of fine less than Rs. 50. He argued that where an order is passed under the First Offender's Probation Act the punishment is less than a sentence of imprisonment or a sentence of fine. This may be so, but Section 413 cannot be construed as meaning that there should be no appeal in other cases not referred to in the section itself. 50. He argued that where an order is passed under the First Offender's Probation Act the punishment is less than a sentence of imprisonment or a sentence of fine. This may be so, but Section 413 cannot be construed as meaning that there should be no appeal in other cases not referred to in the section itself. As was observed by the Calcutta High Court in Bahadur Molla's case the statutory deprivation of a general right of appeal must always be construed strictly. Since Section 413 takes away a right of appeal only in cases where a sentence of imprisonment or a sentence of fine has been passed it cannot be extended to include cases where an order has been passed under the First Offender's Probation Act. 7. I accordingly agree with the view taken by the Court below and hold that an appeal lay. 8. Learned Counsel suggested that the Court should pass orders u/s 561-A of the Code of Criminal Procedure, but I do not consider that Section 561-A can properly be invoked in such a case. 9. The application is accordingly dismissed.