EMPEROR Vs. HUSAIN KHAN

JUDGEMENT

(1.) Husain Khan [and Musammat Waziran were convicted by a first class magistrate of Allahabad of offences under Section 82 of the Registration Act. They appealed to the court of Session at Mirzapur. That court held that no appeal lay from the sentence passed against Musatnmat Waziran, namely, a sentence of Rs. 50 fine or in default one month s simple imprisonment; that the sentence of one year s rigorous imprisonment and a fine of Rs. 100 passed upon Husain Khan was justified by the facts and evidence in the case and was not too severe. It accordingly dismissed the appeal. Both Husain Khan and Musammat Waziran have come here in revision. They attack the convictions on the ground that the prosecution story and the evidence are not reliable and that the sentence of imprisonment, so far as Husain Khan is concerned, is too severe [having regard to his age. Husain Khan s age as entered in [the record is sixty-eight years. So far as the facts are concerned I agree with the lower appellate court that the facts proved establish the offence with which the applicants were charged, and I do not regard the sentence as regards Husain Khan too severe.

(2.) Certain legal pleas have been taken attacking the convictions and sentences, which must now be considered. As regards Musammat Waziran, it is contended that she had a right of appeal and that the learned Judge was wrong in holding that no appeal lay from the sentence passed against her. The sentence passed against her was a fine of Rs. 50 or in default one month s simple imprisonment. No appeal lies from such a sentence; but it is contended that as she was tried in the same trial along with Husain Khan an appeal does lie. In support of this contention reliance is placed upon Emperor v. Lal Singh (1916) I.L.R. 38 All. 395 and Richha v. Emperor (1915) 13 A.L.J. 272. The latter case is not in point at all. It provides for a case in which some persons were convicted by an Assistant Sessions Judge and sentenced to over four years rigorous imprisonment and others sentenced to less than four years rigorous imprisonment. It was held that the appeal of the latter also lay to the High Court. Section 408, Criminal Procedure Code, distinctly gives a right of appeal in the case of persons convicted on a trial by an Assistant Sessions Judge. The present is not such a case. It was undoubtedly held by this Court in Emperor v. Lal Singh (1916) I.L.R. 38 All. 393, that Lal Singh, who was sentenced to one month s rigorous imprisonment only, had a right of appeal because ho was tried along with three other persons and those three were sentenced to undergo rigorous imprisonment for a period of three months each. It was held that Lal Singh having been convicted along with the three others on a trial held by a Magistrate of the first class came within the terms of Section 408, Criminal Procedure Code, and had a right of appeal to the court of Session. Section 413 of the Coda was also considered in the case and it was held that it did not take away the right of appeal which had been conferred by Section 408 of the Code. That section was intended, it was held by my brother Piggott, to restrict the right of appeal to the exclusion of petty cases and nothing more. The wording of Section 408, it was further held, was certainly open to the interpretation that the Legislature intended that the right of appeal exercisable by a person who had received an appealable sentence should carry with it a right of appeal also by any other person convicted at the same trial, even though that particular person may have received a sentence which, if it stood alone, would not have been appealable. This view has also been taken by the Judicial Commissioner s Court in Oudh. The only Oudh case cited to me was Sheopal v. King-Emperor (1912) 15 Oudh Cases 386. With due respect I feel myself compelled to differ. Both in Sheopal v. King-Emperor (1912) 15 Oudh Cases 386 and in Emperor v. Lal Singh (1916) I.L.R. 38 All. 393 I cannot find that any weight has been attached to the opening words of Section 413-"Notwithstanding anything hereinbefore contained." It seems to me that they are very important words and they set aside any right of appeal which might be held to have been created by Sections 407 to Section 410, Criminal Procedure Code. A view contrary to that taken in Lal Singh s case and Sheopal s case has been taken by the Bombay High Court in Reg. v. Kalubhai Meghabhai (1870) 7 Bom. H.C. Rep. Crown, and also by the Madras High Court in Aiyar v. Venkatakriahnayya . I hold that in the case of Muaammat Waziran no appeal lay to the court of Session.

(3.) Another legal plea taken is that the case is one which required sanction, and prosecution could only be started on the complaint of a person receiving sanction and not otherwise, Section 83 of the Registration Act, No. XVI of 1908, lays "down that a prosecution for any offence under this Act coming to the knowledge of a Registering Officer in his official capacity may be commenced by or with the permission of certain Registration Officers specified in the section. The word sanction is not used at all, and I think the use of it tends to create a difficulty which does not exist. The word sanction has received a technical meaning owing to its use in Chapter XV of the Criminal Procedure Code. All that is required before a prosecution under the Registration Act can be commenced is, that permission should be given by a Registration Officer mentioned in Section 83 of the Registration Act. In the present case permission was undoubtedly given. The person who commenced the prosecution in this particular case was the prosecuting Inspector, who, I understand, holds the position given by the Code to the public prosecutor. The definition of complaint contained in Section 4, Clause (h), would bring the case within Section 190, Clause (a), Criminal Procedure Code. Apparently the public prosecutor was not examined under Section 200 of the Code, It would have been better if he had been so examined, but I do not hold that the omission was fatal. There is a considerable difference between a complaint made by a private person and a complaint made by a public prosecutor, and the prejudice which necessarily attaches to the former class of cases does not necessarily attach to the latter.