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Criminal Revision No. 96 of 1957, decided on 11th December 1957.
No inherent right of --Must be expressly, conferred by enactment‑‑Cannot be implied.
There is no such thing as an inherent right of appeal. Appeal is purely a creature of statute, and unless aright of appeal is clearly and expressly given by the. statute, it does not exist, nor is there any scope for inferring such a right by implication.
S. M. K. AM v. The Crown P L D 1953 F C 189; Sasankabimal Dey v. Mst. Halima Bai P L D 1957 Daccg 586 and Rustam Ali Mia Bhuiya v. The State P L D 195'1 Dacca 467 ' distinguished.
Sandback Charity Trustees v. he North Staffordshire Railway Company (1878) 3 Q B D 1 ; Rangoon Botataung Company Ltd. v. The Collector Rangoon I L R 40 Cal. 21 (P C) and Het Ram v. Collector of Aligarh A 1 R 1941 All. 355 rel.
Provisions do, not' confer any, right of appeal‑Previous .state of law cannot be taken into account.
The provisions of section 8 of the Food (Special Courts) Act says no more than this that in respect of the proceedings taken under the said Act by a Special Magistrate the provisions of the Code of Criminal Procedure shall apply., These provisions, however, do not .by themselves confer a right of appeal.
A Court of law cannot also take into account the previous state of the law in order to ascertain the intention of the Legis lature when passing Act X of 1956, for, the established rule is that the Legislature must have taken to have intended what it has said.
Hiralal v. Emperor .A I R 1918 Lah‑. 196‑ref.
---Special Magistrate under the Act Not a Court within meaning of Criminal Procedure, Code‑Order of Special Magistrate not appeal able under the Code.
A special Magistrate under East Pakistan' Food (Special Courts) Act, 1956 is not a Magistrate under the Code of Criminal Procedure. So, even though he may be a Criminal Court constituted by a special statute his Court is not a Criminal Court within the meaning of the Criminal Procedure Code so as to make his orders appealable under the said Code without any provision in that behalf in the statute constituting him a Criminal Court.
--- Court of special Magistrate‑Orders not open to revision by High Court under S. 439, Criminal Procedure Code (V of 1898).
The powers that the Special Magistrate appointed under Act X of 1956 exercises are powers conferred upon him by that Act and not by the Criminal Procedure Code and his jurisdiction is also a special jurisdiction, conferred by the said Act which is larger in some respects than even that of the jurisdiction of Magistrates of the 1st Class. He cannot, therefore, be held to be a Criminal Court within the meaning of the Code of Criminal Procedure even though he might be in the generic sense of the term a Criminal Court and hence his orders are not open to, revision by the High Court under section 439 of the Criminal Procedure Code.
Rongai and others v. The Empress I L R 9 Cal. 513 dist.
Sheo Nandan Prasad Singh v. Emperor A 1 R 1918 Pat. 103 and Banwari Gope and others v. Emperor A 1 R 1943 Pat. 18 fol.
Ahmad Sobhan for Petitioner.
Muhammad Ismail Amicus curiae.
B. A. Siddiky Advocate‑General for the State.
This Rule was issued at the instance of the petitioner who is a‑ dealer in food‑grains. He was tried summarily by the Special Magistrate of Comilla under section 6 of the East Pakistan Food (Special Courts) Act, 1956 (East Pakistan Act X of 1956) for offences punishable under the said Act and was convicted and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs, 300 or, in default of payment of fine, to suffer rigorous imprisonment for a period of three moths more. As against the said order of conviction and sentence, the petitioner preferred an appeal before thee. learned Sessions Judge of Tippera but the latter, on the 6th of February 1957, dismissed the same, holding that no appeal lay from an order passed under the said Act., The present Rule is directed against the said order of dismissal of the appeal. The only point taken in the petition is that the Court below misconceived and misconstrued the provisions of the said Act and thereby refused to exercise a juris diction lawfully vested in it.
This Rule came up for hearing on the 21st of November, 1957, when the learned Advocate Mr. Ahmad Sobhan appeared for the petitioner but no one appeared for the State although the Rule had been served on the State as well. Since a question of interpretation of a Provincial Act was involved and the matter appeared to us to be of some importance; we directed notice of the matter to be given to the Advocate‑General of the Province, as, also requested Mr. Ismail to assist us in the matter amicus curiae, which he has been kind enough to do.
The argument of the learned Advocate for the petitioner is that this Act repealed and replaced the East Pakistan Food (Special Courts) Ordinance, 1956 (Ordinance No. XV of 1956), which in its turn replaced the East Pakistan Food (Control of Movement and Distribution) Ordinance, 1956 (Ordinance No. XII of 1996). But since neither Ordinance No. XV of 1956 nor Act X of 1956 incorporated provisions similar to the provisions of section 13 of the said Ordinance No. XII of 1956 which specifically barred an appeal or revision against orders passed by a Special Magistrate appointed under the said Ordinance, the Legislature evidenced an intention of removing the bar imposed by Ordinance No XII, of 1956 and, there fore, it, must be taken that in effect the Legislature had repealed the provisions of section 13 of the said Ordinance No. XII of 1956 and thus, impliedly, at any rate, given a right of appeal and revision against An order of a Special Magistrate passed under the provisions of Ordinance No. XV of 1956 and Act X of 1956.
This argument is further sought to be strengthened by having recourse to the provisions of section 8 of the said Act X of 1956.
The said section 8 is in these terms :‑
"The provisions of the Code of Criminal Procedure, 1898, in so far as they are applicable and in so far as' they are not inconsistent with the provisions of this Act, shall 'apply to all matters connected with, arising from or consequent upon a trial by a Special Magistrate appointed under this Act".
It is urged that since an appeal is something which arises from or is consequent upon a trial by a Special Magistrate, the pro visions of the said section 8 must be taken to embrace in themselves the right also of preferring an appeal or applying in revision against an order of a Special Magistrate, in accordance with the provisions of Chapters XXXI and XXXII of the Code of Criminal Procedure.
In further support of this contention, the learned Advocate also relies on the decision of their Lordships of the Federal Court in the case of S. M. K, Alvi v. The Crown (P L D 1953 F C 189) where although under the Criminal Law (Amendment) Act of 1948 .it was not specifically provided that an appeal against acquittal, would also lie, their Lordships held that it was sufficient for the ct to have conferred a right of appeal, against a judgment of a Special Judge that according to their Lordships, extended to all the provisions of Chapter XXXI of the Criminal Procedure Code and, therefore, made it competent also for the Government to, prefer an appeal against acquittal under section 417 of the said Code. Their Lordships incidentally also took the view that the expression "Criminal Court" appearing in section 404 of the Criminal Procedure Code would include a Court such .as that of a Special Judge under the said Criminal Law (Amendment) Act of 1948.
Reliance is also placed by the learned Advocate on two other decisions of this Court in the cases of Sasankabimal Dey v. Mst. Halima Bai (P L D 1957 Dacca 586) and Rustam Ali Mia Bhuiya. v. The State (P D L 1957 Dacca 467). In the first case. one of us sitting singly held that the power to heir and dispose of an appeal given by sub section (3) of section 30 of ,the East Bengal Premises Rent Control Ordinance of 1951 to the District Judge included the power to dismiss the appeal for default following certain dicta of their Lordships of the Privy Council in more than one case that where ordinary Courts are seised of a dispute in respect of legal rights, the Courts are governed by the ordinary rules and procedure applicable thereto and an appeal lies if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. In the case of Rustam Ali Mia Bhuiya v. The State, :he question 'Was with regard to the interpretation of subsection (1) of, section 9 Of the Criminal Law (Amendment) Act, 1948, in respect of it proceeding under section 514 of the. Code of Criminai Procedure, forfeiting the security of the, surety, made by :he Ex‑officio Special Judge of Noakhali. In this decision to which one of us also was a party, the view was taken that the last clause of subsection (I) of section 9 of the said Criminal Law Amendment Act meant that where an appeal would ordinarily lie under the Criminal Procedure Code, an appeal may be taken from a judgment of a Special Judge but, where an appeal would riot lie, then the power of revision may be invoked under the Criminal Procedure Code. Iii, other words, the said section gave the right subject to and upon the same conditions and circumstances in which an appeal or a revision would have lain under the Criminal Procedure Code. The decision of their Lordships of the Federal Court referred to earlier was followed in this case:
Neither of these cases, however, assist the learned Advocate, for, in the first case the principle adopted was that where a new jurisdiction is given to an existing Court in the country, the usual incidents of litigation in such Courts are also attracted to the exercise of that new jurisdiction. In the second case, the question was purely of interpretation of the ambit and scope of the said section 9 of the Criminal Law Amendment Act 1948, which expressly gave the right of appeal and revision from orders of Special Judges appointed under the said Act. In the present case, the East Pakistan Act X of 1956 is altogether silent on the question of the' tight of appeal or revision. The contention is that this silence must be interpreted with reference to the previous history of the legislation on the subject and the right of appeal must be taken to be implied in the said Act since it did not renew an earlier provision in a similar Act whereby the right of appeal was expressly taken away.
The argument is attractive but it appears to us to be opposed to the accepted canons of interpretation of statutes and well-established principles governing the right of appeal.
We are grateful to Mr. Ismail for having exhaustively, dealt with this matter and placed before us a large number of relevant authorities. It appears that it is now too well‑settled to be disputed that there is no such things as an inherent right of appeal. Appeal is purely a creature of statute, and unless a right of appeal is clearly and expressly given by the statute, it does not exist, nor f is there any scope for inferring such a right by implication. The earlier decision cited on the subject is in the case of the Sandback Charity Trustees v. The North Stafordshire Railway Company ((1878) 3 Q B D 1) where the Court of Appeal in England presided over by Bramwell, Lord Justice, Brett and Cotton, L.JJ. observed whilst hearing an appeal preferred against an application refusing to order a review by the Master of an order of taxation made by him, in respect of certain proceedings in the Common Law Courts, that the appeal was an experiment which must fail, for,
"If the Legislature intended the Court to review the taxation, it ought to have conferred this power by express words. An appeal does not exist in the nature of things : a right to appeal from any decision of any tribunal must be given by express enactment".
This decision appears to have been followed by the Privy Council in the case of Rangoon Botatouny Company Ltd. v. The Collector Rangoon (I L R 40 Cal. 21 (P C)) where Lord Macnaghten delivering the opinion of the Board quoted with approval the above‑mentioned passage from the judgment of Bramwell, Lord Justice, and went on to observe that in the case before them only
"A special and limited appeal is given by the Land Acquisition Act from the award of the Court' to the High Court. No further right of appeal is given nor can any such right be implied".
It is significant that in the case before their Lordships, section 53 of the Land Acquisition Act also provided that :‑
"Save in so far as they may be inconsistent with anything contained in this . Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under 'this Act"
and section 54 provided that :‑
"Subject to the provisions .of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceedings under this Act".
Notwithstanding these provisions, their Lordships were of the view that they only applied to proceedings in an appeal to the High Court but when the proceeding in ‑ the High Court is at an end, that force is exhausted and there is no further right of appeal to the Privy Council.
In this connection, we may also refer to a 'decision of a learned Single Judge of the Allahabad High Court in the case of Het Ram v. Collector of Aligarh (A I R 1941 All. 355) because, there too the circum stances were somewhat similar to the circumstances in the case before us. There also it was sought to be urged that ‑since the Act under consideration there, namely, the U. P. Tenancy Act, contained no prohibition against the right of appeal from an order of remand, there could be such an appeal. Verma, J. disposed of the said argument as follows :‑
"A right of appeal is a creature of statute. No litigant can claim a right of appeal unless that right is expressly conferred by the statute. The argument that section 272 of the new Tenancy Act does not contain any prohibition against the right of appeal claimed in the present case can be of no assistance to the appellant. It is necessary for him to show that the statute affirmatively confers a right of appeal against an order of this character".
From these decisions, it is clear that since in the Act under consideration, namely, the East Pakistan Act X of 1956, no right of appeal has been expressly conferred, there is no right of appeal and that such a right cannot even be implied into the said Act. The provisions of section 8 of the said Act do not take us an further than this that in respect of the proceedings taken under the said Act by a Special. Magistrate the provisions of the Cod of Criminal Procedure shall apply. These provisions, however, do not by themselves confer a right of appeal. We cannot also take into account the previous state of the law in order to' ascertain the intention of the Legislature when passing Act X of 1956, for, the established Rule is that the Legislature must have taken to have intended what it has said. We cannot speculate as to what might or might not have been in the minds of the legislators.
The view also seems to find support from the language of section 404 of the Code of Criminal Procedure where it is provided that :‑
"No appeal shall lie from any judgment or order of a Criminal Court except as provided for .by this Code or by any other law for the time being in force".
The law for the time being in force, namely, Act X of 1956, does not, of course, provide for any appeal. The question, however, is whether the Court of Special Magistrate appointed under the said Act and exercising jurisdiction under the said Act, is a Criminal Court under the Criminal Procedure Code and, therefore, amenable to the provisions of Chapter XXXI of the Criminal Procedure Code, Section 6 of the Criminal Procedure Code gives a classification of the Criminal Courts under the said Code. They are the Court of Session, Magis trates of the First Class, Magistrates of the Second Class and Magistrates of the Third Class. Section 14 of the Code deals with Special Magistrates. It gives a power to the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the said Code on a Magistrate of the first, second or third class in respect to particular cases or to a particular class or particular classes of cases or as regards cases generally in any local area and such persons are designated as Special Magis trates. The Special Magistrates under Act X of 1956 are Special Magistrates appointed under the said Act. No power either of a Magistrate of the first class, second class or third class has been con ferred upon them but they have been given power to take cognizance of and punish offences under the said Act X of 1956 committed within certain defined territorial limits. The power so vested in them extends to punishing an offender with imprisonment extending to three years or with fine or with both and, further more, to direct forfeiture of the food‑stuffs in respect of which the offence may have been committed. These powers are wider even than the powers of a first class Magistrate. It is thus clear that the Special Magistrate under this Act is not a Magistrate under the Code of Criminal Procedure. So, even though he may be a Criminal Court constituted by a special E statute his Court is not a Criminal Court within the meaning of the Criminal Procedure Code so as to make his orders appealable under the said Code without any provision in that behalf in the statute constituting him a Criminal Court.
It remains for us to notice one other case in this connection, namely, the case of Hiralal v. Emperor (A I R 1918 Lah. 196) where a Division Bench of the Lahore High Court observed that an appeal would lie to the Sessions Judge from the order of a Special Magistrate within the local limits of his jurisdiction. There Special Magistrate was appointed under section 14 of the Criminal Procedure Code who was given jurisdiction extending throughout the extent of the Province but it was held that, notwith standing, an appeal would lie to the Sessions Judge within the limits of whose jurisdiction the Magistrate was in any particular case holding his Court. In that case, there was no doubt that the Special Magistrate appointed was a Special Magistrate under section 14 of the Code of Criminal Procedure. The only difficulty was as to what was the extent of the local area in which he was to exercise jurisdiction. It was urged that since section 14 used the words "any local area" it could not extend throughout the Pro vince. The difficulty was also felt that when such a local area comprised the entire Province the forum of appeal from an order of such a Special Magistrate would be difficult to be fixed but their Lordships of the Lahore High Court there fixed it by saying that it would be the Sessions Judge having jurisdiction in the local area in which the Special Magistrate, in a particular case, held his Court. It does not lay down any wider rule that an appeal shall lie to the Sessions Judge from any kind of Special Magistrate no matter under what Act he is appointed and no matter what the provisions of the said Act.
We, are, therefore, inclined to agree with Mr. Ismail that there is no right of appeal in the present case from an order of a Special Magistrate appointed under Act X of 1956.
The learned Advocate‑General appearing on behalf of the State has signified that having heard the arguments of Mr. Ismail, he subscribes to the same view and has nothing further to add. The petitioner must, therefore, .in our opinion, fail in his contention that the learned Sessions Judge was wrong in rejecting the appeal as being incompetent.
Having decided that no appeal lies, the next question that arises for our consideration is whether notwithstanding the fact that no appeal lies, we can interfere in revision in exercise of our powers under section 439 of the Code of .Criminal Procedure. In the case of Rongai and others v. The Empress (I L R 9 Cal. 513) Mitter and Field, JJ. in the case of an appeal from the order of a Deputy Magistrate of Assam by which a sentence of three years' rigorous imprisonment had been imposed, held that since the new Code of Criminal Procedure of 1882 came into force on the 1st of January 1883, and thereunder there was no right of appeal to the High Court from such a conviction and sentence, yet the case was a fit case for the exercise of the High Court's revisional jurisdiction and dealt with the matter in the exercise of that jurisdiction. It must be observed, however, that in the said case, admittedly, the Court whose order was revised was a Criminal Court under the Code of Criminal Procedure subordinate to the High Court. As against this, we have two Full Bench decisions of the Patna High Court where it has been clearly held that where the Court whose order is sought to be revised is not an inferior Criminal Court within the meaning of the Code of Criminal Procedure, the power of revision under section 439 does not extend. The first is the case of Sheo Nandan Prasad Singh v. Emperor (A I R 1918 Pat, 103) where Dawson Miller, C. J. Malek and Ali Imam, JJ. held that the High Court had no power of revising orders of Commissioners appointed under the Defence of India (Criminal Law Amendment) Act, 1915. Their view was that not only did the High Court not possess the power of revision but it had also no power of superintendence over such Courts created by the Governor‑General, either under the Letters Patent or the Indian Councils Act or under the Indian High Courts Act. To the same effect is the decision in the case of Banwari Gope and others v. Emperor (A I R 1943 Pat, 18) by another Full Bench of the Patna High Court presided over by Harries, Chief Justice Fazl Ali and Varma, JJ. In that case also, the question was whether the High, Court had the power to revise the order of a Special Magistrate, appointed under the Special Criminal Courts Ordinance (Ordi nance 2 of 1942), under sections 435 and 439 of the Code of Criminal Procedure. Fazl Ali, J. who delivered the judgment of the Full Bench, enunciated the principle thus :‑
"It seems to me to be plain that the High Court. cannot revise the order of conviction or sentence passed by the Special Magistrates concerned under sections 435 and 439, Criminal Procedure Code, because this power of revision can be exercised only as against orders passed by Magistrates exercising juris diction under the Code of Criminal Procedure. As the Special Magistrates derived their jurisdiction from the Ordinance, they cannot be properly described as inferior criminal Courts and the High Court cannot revise their order".
We are in respectful agreement with this view expressed by their Lordships of the Patna High Court. In the present case also, the Special Magistrate is appointed under Act X of 1956. The powers that he exercises are powers conferred upon him by that Act and not by the Criminal Procedure Code and his jurisdiction is also a special jurisdiction conferred by the said Act which is larger in some respects than even that of the jurisdiction of Magistrates of the first class. He cannot, therefore, be held to be Criminal Court inferior to the High Court within the meaning of the Code of Criminal Procedure even though he might be in the generic sense of the term a Criminal Court. In the result, therefore, we find ourselves unable to interfere even in revision in this matter.
As in the Patna case, we must, however, observe that notwithstanding the conclusion to which we have arrived the petitioner is not entirely without remedy, for, he may well have other remedies open to him by following a different procedure.
The result, therefore, is that this Rule is discharged. The petitioner will now surrender to his bail and serve out the remainder of his sentence and also pay the fine imposed on him.
Z. A. S.
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