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 J9