- (1.) THIS is a reference under Section 438. Criminal P. C. , by the learned Sessions Judge of shahjahanpur. He recommends that Aziz Khan's conviction under Section 7 of the Essential supplies (Temporary Powers) Act (24 of 1946) read with Clause 3, Cotton Textile (Control of movement) Order, 1948 recorded by a learned Magistrate of that district in a summary trial be quashed and that the sentence of a fine of rupees twenty five and oft the forfeiture of certain quantity of cloth be set aside.
(2.) AZIZ Khan had filed a revision before the learned Sessions Judge and thereupon the learned sessions Judge made this reference. Obviously it was taken for granted by Aziz Khan in the court below that the sentence awarded to him was not appealable. The learned Sessions Judge made a brief reference to this question in the note appended to his judgment. He was of the opinion that since it was not proved that the cloth of which forfeiture had been ordered was worth more than rupees one hundred and seventy five, no appeal lay. In a summary trial an appeal is not provided in cases where the sentence is of fine only, and the fine does not exceed rupees two hundred. Obviously the learned Judge thought that no appeal Jay if the value of the cloth and the amount of the fine taken together did not exceed the sum of rupees two hundred.
(3.) I have given due thought to this question and I have come to the conclusion that the sentence passed by the learned Magistrate was appealable and that the learned Sessions Judge could, himself give appropriate relief to Aziz Khan if an appeal had been preferred by him. In the circumstances Section 439 (5), Criminal P. C. came into play; no revision could be entertained at the instance of Aziz Khan and consequently no reference could be made to this Court.;