Panigrahi, C.J. -
(1.) This is an application under Section 439, Criminal P.C. challenging the legality of an order of conviction passed by, Sri B.C. Patnaik, Magistrate, First Class with appellate powers, Cuttack. The petitioners were accused of having allowed their cattle to stray into the field of the complainant (P.W. 1) and damage his chilly crop. The complaint filed, by P.W. 1 was taken cognizance of by the Subdivisional Magistrate, who transferred it for trial to the file of Sri P. Tripathy, Magistrate, II Class, Cuttack. The Magistrate found that damage had been caused to the crop of the complainant (P.W. 1) by the cattle of the petitioners. He also found that the cattle were being led to the pound by P.W. 1 when the petitioners forcibly rescued them. The trying Magistrate was of opinion that these two facts were not sufficient to constitute the ingredients of an offence under Section 24, Cattle Trespass Act. He however convicted the petitioners under Section 426, I.P.C. and sentenced them to pay a fine of Rs. 50/- each. Against this order of conviction the petitioners preferred an appeal before Sri B. C. Patnaik, Magistrate, First Class with appellate powers, Cuttack, and he held that Section 426, I.P.C. was not applicable to the facts proved in the case and that the lower court had taken an erroneous view of the law. The appellate Magistrate therefore altered the finding of conviction under Section 426, I.P.C. into one under Section 24, Cattle Trespass Act and reduced the sentence. It is against this appellate judgment that the present petition has been filed, under Section 439, Criminal P. C.
(2.) Mr. B. Mohapatra, learned counsel for the petitioners, has addressed a lengthy argument on the powers of an appellate court under Section 423, Criminal P. C. and contends that the trial Court having acquitted the petitioners of the offence of cattle trespass, the lower appellate court had no power to alter that finding of acquittal into one of conviction and that it has thus exercised a power beyond its jurisdiction. Strong reliance was placed on the minority view propounded in -' Zamir Qasim v. Emperor', AIR 1944 All 137 (FB) (A), and the decision of a single Judge in --'Panu Nayak v. Chintai Mallik', AIR 1948 Pat 435 (B). Even at the time of admitting this revision, Narasimham J. appears to have doubted the correctness of the decision in -- 'AIR 1948 Pat 435 (B)' and directed that this matter should be placed before a Division Bench.
(3.) Sub-section (1) of Section 423, Criminal P. C-says:
"423 (1) The appellate court ........may (a) in an appeal from an order of acquittal reverse: such order and direct that a further enquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass a sentence on him according to law;
(b) in an appeal from a conviction (1) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or committed for re-trial; (2) or 'alter the finding maintaining the sentence' or alter the finding reducing the sentence; or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, subject to the provisions of Section 106 not so as to enhance the same;.
(c) in appeal from any other order, alter or reverse such order; (d) make any amendment or any consequential or incidental order that may be just or proper." The Section, therefore, defines the powers of an appellate court both in an appeal against acquittal and in an appeal against conviction. An appeal against an order of acquittal is provided for in Section 417, Criminal P. C. and the power to appeal is vested exclusively in the state Government Section 423 (1) enables the appellate Court to reverse the order of acquittal and direct a further enquiry to be made or direct that the accused may be committed for trial, or find him guilty and pass a sentence on him according to law. It should be noted that these orders can be passed only if the order of acquittal is reversed or set aside. Section 423 (1) (b) deals with appeals against orders of conviction. In dealing with such appeals the Court may do one of three things. Firstly, it may reverse the finding and sentence, and acquit the accused, or order him to be retried or committed for trial. So far, it would appear that the appellate court has the power, when it reverses a finding of acquittal or conviction, to direct the subordinate court to re-try him or commit him for trial, if it is of opinion that a further inquiry should be made into the case. Secondly, the appellate Court, in dealing with appeals against convictions, has some further powers, one of them being to alter the finding maintaining the sentence, or reduce the sentence without altering the finding. Thirdly, it has also the power to alter only the nature of the sentence without interfering with the finding, or reduce the sentence itself. The only limitation is that it cannot enhance the sentence while altering the finding or the sentence.;