V. BHASKARA RAO, J.

( 1 ) THE question of law involved in this revision is, whether the default sentence of imprisonment is to be added to the substantive sentence of imprisonment for purposes of determining the appellate forum under S. 374, Cr. P. C.

( 2 ) SECTION 374, Cr. P. C. to the extent relevant reads :"374. Appeals from convictions. (1 ). . . . . . . . . . . . . . . . . . . . . . . . . (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial may appeal to the High Court. (3) Save as otherwise provided in subsection (2), any person (a)convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of First Class or of the Second Class, or (b) to (c ). . . . . . . . May appeal to the Court of Session. "

( 3 ) IN the case on hand, the petitioner was sentenced to suffer rigorous imprisonment for seven years and also to pay a fine of Rs. 100 in default to suffer simple imprisonment for one month by the Assistant Sessions Judge when an appeal was filed in the Court of Session the same was rejected as not maintainable on the ground that the substantive sentence of imprisonment and the default sentence of imprisonment put together is more than seven years and therefore appeal lay to the High Court under S. 374 (2), Cr. P. C.

( 4 ) MR. Chandrasekhara Rao, the learned Counsel submitted that the words "sentence of Imprisonment" occurring in S. 374 (2), Cr. P. C. only mean substantive sentence of imprisonment and do not include the default sentence for non-payment of fine and since the substantive sentence of imprisonment do not exceed seven years it is the Court of Session that is the appellate forum under S. 374 (3), Cr. P. C.

( 5 ) THE learned Additional Public Prosecutor, on the other hand, submitted that sentence of imprisonment takes in both the substantive as well as the default sentence and therefore the Court below has rightly rejected the appeal as not maintainable.

( 6 ) BEFORE deciding the issue involved, it is apposite to notice the corresponding provision in the earlier Codes and the changes it underwent.

( 7 ) SECTION 411 of the Code of Criminal Procedure, 1882 is a provision dealing with appellate forum and it reads : - s. 411. Any person convicted on a trial held by a Presidency Magistrate, may appeal to the High Court if the Magistrate has sentenced him to imprisonment for a term exceeding six months or to fine exceeding two hundred rupees. " in Schein v. The Queen Empress (1), (1889) ILR 16 Cal 799, the Calcutta High Court was to consider a question similar to the one on hand since there also besides the substantive sentence of six months there was default sentence; the limit for deciding the appellate forum being six months imprisonment as per S. 411 construing S. 411, it was held :"in this case the Magistrate has neither sentenced the appellant to imprisonment exceeding six months nor has he sentenced him to a fine exceeding two hundred rupees. But it is contended by the pleader for the appellant that the combination of the sentence of imprisonment and fine gives an appeal. That is not justified by the words of S. 411 and we think a reference to S. 415 makes the construction of the earlier section clear. . . . . . . . . . . . . it follows that the Legislature did not intend to apply to Sec. 411 the provisions in S. 415 that is to say, that a combination of punishments does not give a right of appeal under S. 411. "it was accordingly concluded by the Calcutta High Court that the appeal does lay to the High Court.

( 8 ) IN Jotharam Davay, (1881) ILR 11 Mad 30, the Madras High Court was considering a similar question while interpreting Sec. 411 of 1882, Cr. P. C. The appellant therein was sentenced to suffer six months imprisonment and to pay a fine of Rs. 200/ - i

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