( 1 ) ONE Sri S. N. Tandon was prosecuted by the Regional Provident Fund Inspector, Kanpur for contravening the provisions of Section 38 (i) and (ii) and Section 76 of the Employees, Provident fund Scheme, 1952. He was found guilty of the offence charged. The learned City Magistrate considered it appropriate to let him off with a warning.

( 2 ) SRI S. N. Tandon then preferred an appeal to the learned Sessions Judge of Lucknow. A preliminary objection was raised there that no appeal lay because the learned Magistrate had not passed any sentence on the appellant. The learned Sessions Judge relying on the case of Hari charan v. State, reported in 1950 All WR 678: (AIR 1951 All 442), held that no appeal lay under section 408, Criminal Procedure Code. The appeal was, accordingly dismissed as being not maintainable.

( 3 ) THEREUPON a criminal revision was filed in this court against the learned Sessions Judges order upon the ground that the learned Sessions Judge had erred in holding that no appeal was maintainable. The revision came up before a Division Bench of this Court consisting of my brother, Mulla and brother Tandon, My brother, Mulla, was of the view that no appeal lay to the learned Sessions Judge because a mere order of admonition (actually the Magistrate used the word warning) amounts in effect, to a lesser sentence than that of a fine of Rs. 50/- and that, therefore, the provisions of Section 413 of the Criminal Procedure Code (hereinafter to be referred to as the code) which related to appeals in petty cases applied and no appeal was, therefore, permissible. On the other hand, my brother, Tandon, was of the view that Section 413 did not cover the case, and Sri S. N. Tandon was entitled to prefer an appeal.

( 4 ) THE question for determination, therefore is whether when an order of admonition is passed under the provisions of the U. P. First Offenders Probation Act (hereinafter to be referred to as the Probation Act) No. VI of 1938 which have replaced the repealed Sections 561, 562, 563 and 564 of the Code a right to prefer an appeal exists under Section 408 of the said Code or not?

( 5 ) TURNING first to Chapter XXXI of the Code, which is a Chapter dealing with appeals, one finds that by Section 404 thereof, it is enacted that:

"no appeal shall He 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"

Section 408 of the Code then provides that:"any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or any other Magistrate, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under 15. 380 by any Magistrate, may appeal to the court of Session. "

Thereafter Section 413 provides as follows:"notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a High Court passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or in a Court of Sessions passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or district Magistrate or other Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only. "

Section 415-A of the Code then provides as under:"notwithstanding anything contained in this Chapter, when more persons than one are convicted in one trial, and an appealable judgment or order has been passed in respect of any of such persons, all or any of the persons convicted at such trial shall have a right of appeal. ". Inasmuch as Section 408 of the Code refers to Sections 349 and 380 it is necessary to quote these two sections also.

( 6 ) NOW Section 349 enacts as follows:

" (1) Whenever a Magistrate of the second or third class, having jurisdiction, is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ou