- (1.) This appeal has been filed against the order and judgment dated 26-11-1975 of III Addl. District & Sessions Judge, Farrukhabad in Sessions Trial No. A-59 of 1975 convicting them under Section 323 IPC and sentencing each of them to pay a fine of Rs. 100/-. In default of payment of fine to undergo Section 1. for six months. Kallumal was prosecuted under Section 308 IPC and all other Appellants were prosecuted under Section 147 IPC but were acquitted under those sections.
(2.) A preliminary objection has been raised in this case by the learned Counsel for the State that such an appeal is barred under Section 376(b) Code of Criminal Procedure. The section reads as follows: Section 376: Notwithstanding anything contained in Section 374 there shall be no appeal by convicted person in any of the following cases, namely: (a) ... (b) where a court of session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine: (c) ...... (d)... Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground. (i) that the person convicted is ordered to furnish security to keep the peace; or (ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or (iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed does not exceed the amount herein before specified in respect of the case.
(3.) Sri Keshav Sahai, learned Counsel for the Appellants has argued that proviso (ii) would mean that in case there is a sentence of imprisonment upto three months and also sentence of fine upto Rs. 200/- and in default of payment of fine there is further sentence of imprisonment upto three months or less than three months, then no appeal would lie. But in case the sentence in default of payment of fine is more than three months then the appeal would lie. He has also argued that the proviso should be read in a very strict manner and when it is capable of two interpretations, interpretation favourable to the accused should be given. He has further argued that it being adjective law statute should be so interpreted that no possible remedy of the accused is shut out. I have given my careful consideration to all these arguments and, in my opinion the proviso referred to above is not capable of any two interpretations. No limit of sentence of imprisonment in default of payment of fine has been provided. There is thus no basis for the argument that the appeal would lie when the sentence in default of payment of fine is for more than three months. He has based this argument on the wording of the proviso that "against any such sentence if any punishment is combined". I do not agree with this contention. Section 376(b) clearly provides that substantive sentence should be upto three months and fine should be upto Rs. 200/-. When it is read with proviso to Sub-section (ii) it obviously follows that the substantive sentence and the sentence in default of payment of fine combined could be for more than three months. Sri Keshav Sahai states that it is possible that both such sentences combined may exceed three months. But he has argued that when the sentence of fine alone has been imposed it could not be for more than three months, as the maximum substantive sentence should be only of three months. I do not agree with this contention as, in my opinion no limit is prescribed under Clause (ii) of the proviso. The appeal is, therefore, incompetent.;