The main legal principle established in the judgment is that the words 'Court of Session' in Sec. 408 refer only to the Court of Session presided over by the Sessions Judge, and an Assistant Sessions Judge does not have the authority to receive and admit appeals under Sec. 408.

Chaudhuri, J.

1. This is a complainants appeal under Sec. 417 sub-section (3) of the Code of Criminal Procedure and raises an important question of Jaw 35 to the interpretation of sections 408 and 409 of the Code as amended by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955).

2. The facts lie within a short compass. On the complaint of the appellant a case of assault was started against the respondent. The case was tried by a Munsif-Magistrate of Sasaram exercising second class powers. The learned Munsif-Magistrate by his order dated the 12th November, 1956 convicted the respondent under sec. 323 of the Indian Penal Code and sentenced him to pay a fine of Rs. 50/-, in default to undergo simple imprisonment for 15 days. The respondent preferred an appeal against his conviction in the Court of the Assistant Sessions Judge at Sasaram on the 16th November 1956. The order-sheet of the learned Assistant Sessions Judge of that date runs thus:

"1. 16-11-56. Appeal filed which is within time. Admit. Issue notice, call for the record and fix 13-12-56 for hearing. Stay realisation of fine till final disposal of the appeal."

The appeal was heard on the 13th December J956 and on the 17th December 1956 the learned Assistant Sessions Judge passed orders allowing the appeal and setting aside the conviction of the respondent. The present appeal is directed against this order, it is urged on behalf of the appellant that the order of acquittal passed by the learned Assistant Sessions Judge was illegal and without jurisdiction inasmuch as he had no powers to receive and admit the appeal and further to hear it himself in contravention of sections 408 and 409 of the Code of Criminal Procedure.

3. Before I deal with the contentions raised by learned counsel for the appellant I set out below the relevant portions of sections 408 and 409 of the amended Code which deal with the filing of appeals and the hearing of such appeals. Sec. 408 runs thus:-

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"Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate or any person sentenced under sec. 349 or in respect of whom an order has been made or a sentence has been passed under sec. 380 by any Magistrate, may appeal to the Court of Session",

Then follows a proviso with which we are not concerned. It would be noticed that the only amendment affected in the passage quoted above by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955) was that the words "other Magistrate of the first class" which occurred in the original section were substituted by the words "any other Magistrate". Similarly the words "by any Magistrate" were substituted by the amending Act for the words "by a Magistrate of the first class" appearing in the section prior to the amendment.

4. Sec. 409 makes the folio wing provision, for the hearing of criminal appeals: . .

"(1) Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be hoard by the Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Judge: Provided that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person convicted ph a trial held by any Magistrate of second or third class.

(2) An Additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him."

Section 408 is a general provision conferring a right of appeal to the Court of Session in the cases mentioned therein while sec. 409 indicates where and by whom such appeals are to be heard. The Sessions Judge as well as Additional Sessions Judges and Assistant Sessions Judges appointed under Sub-section (3) of section 9 are all empowered to hear these appeals. In the case of an Additional Sessions Judge and an Assistant Sessions Judge, however, there are certain restrictions. They can h