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The common question of law which arose in the two cases and which has been argued before us is :

"Whether the Additional Sessions Judge concerned had power and competence to receive and hear appeals presented to him against conviction and sentence passed by a Second Class Magistrate ?"

Before the Criminal Procedure Code was amended by Amendment Act XXVI of 1955, Section 407 made provision for appeals against convictions by Magistrates of Second or Third Class and Section 408 made provision for appeals from convictions by a Magistrate of the First Class. By the Amendment Act of 1955, all appeals from convictions of all Magistrates were made to lie to the Court of Session by omitting Section 407 altogether and suitably amending Section 408. Necessary amendment was also made to Section 409 Sections 407, 408 and 409 before and after amendment, are as follows :

(ii) Any other Magistrate has no such power to take cognizance by virtue of his position or office but can be invested with such power.

9. The Legislature considered it necessary to make specific provision in Section 407 (2) (old) for presentation of appeals directly to a subordinate Magistrate who was empowered as mentioned in that sub-section. But, there is no such provision in Section 409 (2) or in any other portion of the Code of Criminal Procedure enabling the presentation of any appeal directly to an Additional Sessions Judge or empowering an Additional Sessions Judge to receive appeals directly from appellants or authorising the State Government to empower the Additional Sessions Judges to receive appeals directly from appellants. Chaudhuri, J., in the decision Cited supra viz., (FB) observed that it was not the intention of the Legislature that the power given to Assistant Sessions Judges and Additional Sessions Judges to hear appeals under Section 409 should include the power to receive and admit such appeals. It is interesting to note that, in introducing the amending bill, the Hon' ble Minister has stated as follows (in Parliamentary Debates -- Part II, Vol. IV, 1954, Column 6463):

10. But, this statement of the Hon'ble Minister cannot be used as an extrinsic aid to the interpretation of Sections 408 and 409 Cr. p. C. as amended by Act XXVI of 1955, in view of the decision in Aswinikumar v. Arabinda Bose, .

In the last sentence of Section 407 (2) (old) provision is made expressly to enable District Magistrate to withdraw to his file, appeals which, have been presented to a subordinate Magistrate (and taken on file by him) as a result of the empowering of that Subordinate Magistrate to receive appeals direct from appellants. When Section 528 Cr. p. C. was amended by Act XXVI of 1955, in making provision for withdrawal and recall by the Sessions Judge from the file of the Additional Sessions Judge or Assistant Sessions Judge, provision has been made regarding cases or appeals which the Sessions Judge had already made Over to them (Additional Sessions Judge or Assistant Sessions judge).