Held, Section 376 carves out an exception to the general rule in Section 374 which provides for an Appeal against the orders of conviction. Under the said Code, a special class of Magistrates, namely Metropolitan Magistrates are appointed in the metropolitan area. Classification of metropolitan area is essentially made on the basis of the large population. Perhaps, the Legislature was aware of the fact that in case of metropolitan area, the commercial activities, economic structures, tempo of life and influences will be totally different and distinct from other places. In Metropolitan area, there will be propensity towards economic offences. Therefore, there is an intrinsic evidence even in the said Code to show that the Courts of Metropolitan Magistrates are treated differently from the Court of Judicial Magistrates of First Class in the Districts. That is the reason why there is a separate provision regarding appeals against the order of conviction passed by the learned Metropolitan Magistrate. It is well-settled that only on the ground that the Appeal is not provided in a particular statute, the same is not rendered constitutionally invalid. When there is an intrinsic material to show that the said Code itself treats the Metropolitan Magistrates differently from the Judicial Magistrates of First Class, the argument of discrimination made by the Petitioners does not hold good. A different law can be certainly applied to a Metropolitan area. Moreover, there is no inherent right of appeal. If statutes creates a right of appeal against the order of conviction, any act which prevents the accused from preferring an Appeal or availing the statutory remedy of appeal may be in violation of Article 21 of the Constitution of India. But a legislation cannot be struck down on the ground that there is a violation of Article 21 of the Constitution of India as a result of failure to provide for an Appeal against a particular category of orders of conviction. Thus, it was held that Clauses (b) and (c) of Section 376 of the Code of Criminal Procedure, 1973 are legal and valid.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2903 OF 2011
Mr.Kumar J. Sujan,
Versus
The State of Maharashtra.
CORAM : S.C.DHARMADHIKARI
AND
S.B.SHUKRE, JJ.
Pronounced on : 24th July, 2013.
Citation: IV(2013)BC301, 2014(1)BomCR(Cri)569, 2014(1)MhLj516,2014 CRLJ(NOC) 369
1 In this Writ Petition, a Division Bench of this Court
extensively heard the parties and delivered a judgment on 05.11.2012
holding that the prayer clause (b) of the Writ Petition cannot be granted.
The prayer clause (b) reads as under:“(
b) that this Hon'ble Court be pleased to declare that subsections
(b) and (c) of Section 376 of the Code of
Criminal Procedure, 1973 are unconstitutional and/or
ultra vires Part III of the Constitution of India.”
2 The Division Bench clarified that as far as other prayers are
concerned, the Petition may be placed for hearing. Hence, Rule.
Respondents waive service. By consent, Rule made returnable forthwith.
3 We have heard Mr.Kumbhakoni, learned counsel appearing
for the Petitioners and Mr.Farhan Khan, learned counsel appearing for the
Respondent No.2/ original Complainant.
4 The Petitioners were arraigned as accused in a complaint
filed by the Respondent No.2 alleging offences punishable under Section
138 r/w 141 of the Negotiable Instruments Act, 1881. The complaint was
based on dishonour of two cheques of the aggregate amount of
Rs.14,35,000/.
The learned Metropolitan Magistrate convicted the
Petitioners by order dated 26.07.2011. The order of conviction and
sentence reads as under:“(
i) Accused are hereby convicted for the offence
punishable under Section 138 r/w Section 141 of the
Negotiable Instruments Act.
(ii) Accused No.2 Kumar J. Sujan, aged about 66 years
and accused No.3 Anil Mehrotra, aged about 65
years, both R/o Andheri, Mumbai shall sentence to
suffer S.I. till rising of the Court by each and accused
shall jointly and severally to pay compensation of
Rs.15,00,000/(
Rupees Fifteen Lakhs only) to the
Complainant under Section 357(3) of Cr.P.C. within
three (3) months from today, in default sentence to
suffer S.I. for six (6) months.
(iii) Accused shall surrender their bail bonds.
(iv) Copy of judgment be supplied free of cost to the
accused, after transcription of judgment be ready.
(v) Judgment dictated and pronounced in open court.”
5 Against this judgment and order dated 26.07.2011, Criminal
Appeal No.136/2011 was filed by the Petitioners in the Court of Sessions
for Greater Mumbai at Sewree. Before the Appeal could be set down for
hearing on merits, the Respondent No.2 (original Complainant) preferred
an application for dismissal of the Appeal on the ground that an appeal
against the above sentence was not maintainable by virtue of the bar
created by Section 376 of the Code of Criminal Procedure, 1973.
6 The argument was that Section 376(b) lays down that no
appeal shall lie before the Court of Sessions where the Metropolitan
Magistrate passes only a sentence of imprisonment for a term not
exceeding three months or fine not exceeding Rs.200/or
of both such
imprisonment and fine. Therefore, when the sentence awarded in the
present case included no fine, so also, imprisonment was not for a period
exceeding three months, the Appeal preferred by the Petitioners was
incompetent and not maintainable by virtue of the bar created by Section
376(b) of the Code of Criminal Procedure, 1973.
7 Upon this position being brought to the Sessions Court's
notice, the Appeal was dismissed holding that it was barred by Section
376 of the Code of Criminal Procedure, 1973. Challenging this order
dated 24.08.2011 the instant Writ Petition was filed and the issue of
constitutional validity of Section 376(b) and (c) was raised. That
challenge was negatived by a detailed judgment of the Division Bench
dated 05.11.2012. However, we have heard the matter for the other relief
pressed and as noted above.
8 Mr.Kumbhakoni, learned counsel appearing for the
Petitioners, submits that the impugned order can be challenged by him on
other grounds. In other words, assuming that the provision is
constitutionally valid, he submits that the Court of Sessions at Greater
Mumbai could not have passed the order of dismissal of Appeal. The
impugned order is vitiated by total non application of mind. The learned
Judge proceeded on the footing that the order passed in the present case
is not appealable at all. However, that finding is based on an incorrect
reading of a legal provision. Mr.Kumbhakoni submits that for the time
being, the Petitioners assume that the provisions of Section 376 of the
Code of Criminal Procedure, 1973 are constitutionally valid, but they have
to be interpreted in such a way that parties like the Petitioners are not
deprived of a right of appeal. They could not have been deprived of a
right of appeal if at all there was doubt in the mind of the learned Judge
about maintainability thereof. When two views are possible, one which
upholds the right of appeal of the accused should be placed on the legal
provision. A rigid and strict construction may curtail or take away the
right of appeal which is otherwise available in law. Therefore,
Mr.Kumbhakoni submits that this Writ Petition still survives as he wishes
to place before the Court an interpretation of the provision in question
which will preserve and protect the right of appeal.
9 On the other hand, Mr.Khan, learned counsel appearing for
the Respondent No.2/ original Complainant, submits that the impugned
order does not call for any interference. There is absolutely no merit in
this Writ Petition and it should be dismissed as infructuous. The
Petitioners are not remedyless inasmuch as they could have challenged
the Magistrate's order by way of a Revision Application. Further, the law is
well settled that an Appeal is creature of the statute. It is not a vested or
inherent right. Once an Appeal is not specifically provided by a provision
of law, then, by implication, the same cannot be read into it. There has to
be a clear provision creating a right of appeal. In this case, there is no
specific provision, but on the other hand, the provision in question is
excluding an appeal. When the words of a Statute are plain and clear and
there is no scope for interpretation, then, this Court cannot, by an
interpretative process, confer right of appeal. Mr.Khan relies upon the
wording of Section 376 of the Code of Criminal Procedure, 1973 and
submits that wherever the Legislature intended to confer a right of appeal
in this very provision, it has provided the same. When it is not conferred,
that exclusion must be construed strictly and hence, there is no merit in
the Writ Petition and it must be dismissed.
10 With the assistance of the learned counsel appearing for the
parties, we have perused the Writ Petition and annexures thereto and the
provisions of the Code of Criminal Procedure, 1973 brought to our notice.
11 What is apparent from the record is that one application was
made by the Respondent No.2 (M/s Saraf Enterprises) urging that the
criminal appeal filed by the present Petitioners (original Appellants) is not
maintainable. The argument was that an Appeal has not been provided
against the order of the present nature. Merely because the Petitioners are
directed to undergo sentence of imprisonment of six months in default of
payment of compensation of Rs.15 lacs, the bar of filing an appeal is not
lifted. Therefore, the Appeal is not maintainable in law.
12 The Petitioners contended that the order passed by the Trial
Magistrate is clearly appealable because compensation of Rs.15 lacs and
default punishment provided therefor is beyond the clauses of Section
376 of the Code of Criminal Procedure, 1973. Therefore, the Appeal is
maintainable. It is also maintainable because the award of compensation
is akin to fine.
13 The learned Additional Sessions Judge heard both sides and
held in paragraphs 7 and 8 as under::::
“7. Section 376 of Cr.P.C. particularly, the proviso states
that an appeal may be brought if “any other
punishment” is combined with non appealable sentence
in cases under clauses (a), (b), (c) and (d). The
expression “any other punishment” means any other
kind of sentence and that is ruled in Kunj AIR 1947 ALL
169, 170. In the present case, the accused was sentenced
to SI till rising of the Court and no fine was inflicted.
Compensation was awarded. Compensation even though
is akin to fine as is laid down in case of Dilip S.
Dahanukar vs. Kotak Mahindra Co.Ltd. and another,
2007 ALL MR (cri) 1775 (SC), but that is as far as
recovery is concern. That cannot independently fall
within the ambit and scope of fine. Therefore, such a
compensation or order directing the compensation
cannot be combined with SI till rising of the Court, so as
to brand such a sentence as an appealable order. When
there is specific bar, then such exercise cannot be done.
When there is specific bar, then literal meaning of the
sentences used by the legislature has to be considered.
The “Golden Rule of Interpretation of Statute” has to be
applied i.e. literal meaning has to be gathered. Applying
that rule, if the bar is considered coupled even with
proviso, then, it is crystal clear that order of
compensation cannot be combined with, nor can be
considered as a combination, so as to hold that such
order is appealable.
8. Had it been the fact that some fine was imposed, then in
that eventuality, the appeal would lie, but when no fine
is imposed, then order directing the payment of
compensation cannot be considered as a fine, so as to
hold that it is an appealable order and that too for
taking the case out of teeth of section 376 of Cr.P.C..
Under the circumstances, therefore, in my considered
view, because of specific bar, no appeal would lie against
such order. The revision definitely would lie. The learned
Advocate for the Appellant has requested that reasoned
order may be passed, as they want to assail that order
in the Hon'ble High Court. Because of that request, I am
required to pass the detail order.”
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14 The correctness of this view is questioned before us.
15 Sections 357 and 376 of the Code of Criminal Procedure,
1973 read as under:“
357. Order to pay compensation.
(1) When a Court imposes a sentence of fine or a
sentence (including a sentence of death) of which fine
forms a part, the Court may, when passing judgment,
order the whole or any part of the fine recovered to be
applied(
a) in defraying the expenses properly
incurred in the prosecution;
(b) in the payment to any person of
compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the
Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any
offence for having caused the death of another person
or of having abetted the commission of such an
offence, in paying compensation to the persons who
are, under the Fatal Accidents Act, 1855 (13 of
1855), entitled to recover damages from the person
sentenced for the loss resulting to them from such
death;
(d) when any person is convicted of any
offence which includes theft, criminal
misappropriation, criminal breach of trust, or
cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in
disposing of, stolen property knowing or having
reason to believe the same to be stolen, in
compensating any bona fide purchaser of such
property for the loss of the same if such property is
restored to the possession of the person entitled
thereto.
(2) If the fine is imposed in a case which is subject
to appeal, no such payment shall be made before the
period allowed for presenting the appeal has elapsed,
or, if an appeal be presented, before the decision of the
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appeal.
(3) When a Court imposes a sentence, of which fine
does not form a part, the Court may, when passing
judgment, order the accused person to pay, by way of
compensation, such amount as may be specified in the
order to the person who has suffered any loss or
injury by reason of the act for which the accused
person has been so sentenced.
(4) An order under this section may also be made
by an Appellate Court or by the High Court or Court
of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or
recovered as compensation under this section.”
“376 . No appeal in petty cases .
Notwithstanding anything contained in section 374,
there shall be no appeal by a convicted person in any
of the following cases, namely:(
a) where a High Court passes only a sentence of
imprisonment for a term not exceeding six months or
of fine not exceeding one thousand rupees, or of both
such imprisonment and fine;
(b) where a Court of Session or a Metropolitan
Magistrate passes only a sentence of imprisonment for
a term not exceeding three months or of fine not
exceeding two hundred rupees, or of both such
imprisonment and fine;
(c) where a Magistrate of the first class passes only
a sentence of fine not exceeding one hundred rupees;
or
(d) where, in a case tried summarily, a Magistrate
empowered to act under section 260 passes only a
sentence of fine not exceeding two hundred rupees:
Provided that an appeal may be brought against any
such sentence if any other punishment is combined
with it, but such sentence shall not be appealable
merely on the ground(
i) that the person convicted is ordered to furnish
security to keep the peace; or
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(ii) that a direction for imprisonment in default of
payment of fine is included in the sentence; or
(iii) that more than one sentence of fine is passed in
the case, if the total amount of fine imposed does not
exceed the amount hereinbefore specified in respect of
the case.”
16 A perusal of Section 357 reveals that subsection
(1) of
Section 357 enables the Court to pass a further order in terms of clauses
(a) to (d) thereof. Subsection
(2) thereof provides that if fine is imposed
in a case which is subject to appeal, no such payment shall be made
before the period allowed for presenting the Appeal has elapsed or if an
Appeal is presented, before the decision of the Appeal. Subsection
(3)
enacts a salutary provision which empowers the Court to make an order
of compensation. That order can be made when the Court imposes
sentence of which fine does not form a part. The Court, therefore, can
award compensation to a person who has suffered any loss or injury by
reason of the act for which the accused person has been so sentenced.
17 This provision fell for interpretation of the Honourable
Supreme Court in the case of R.Vijayan v/s Baby and another, reported in
AIR 2012 SC 528 (Criminal Appeal No.1902/2011 arising out of Special
Leave Petition (Criminal) No.2586/2007 dated 11.10.2011). The
Honourable Supreme Court has held as under:“
7. Subsection
(3) of section 357, is categorical
that the compensation can be awarded only where
fine does not form part of the sentence. Section
357(3) has been the subjectmatter
of judicial
interpretation by this Court in several decisions. In
State of Punjab vs. Gurmej Singh [2002 (6) SCC
663 : (AIR 2002 SC 2811 : 2002 AIR SCW 3186)],
this Court held::::
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"A reading of subsection
(3) of Section 357
would show that the question of award of
compensation would arise where the court imposes a
sentence of which fine does not form a part."
This Court also held that section 357(3) will not
apply where a sentence of fine has been imposed.
8. In Sivasuriyan vs. Thangavelu [2004 (13) SCC 795],
this Court held:"
In view of the submissions made, the only
question that arises for consideration is whether the
court can direct payment of compensation in exercise
of power under subsection
(3) of Section 357 in a
case where fine already forms a part of the sentence.
Apart from subsection
(3) of Section 357 there is
no other provision under the Code whereunder the
court can exercise such power:"
After extracting section 357(3) of the Code, the
Court proceeded to hold thus:"
On a plain reading of the aforesaid provision,
it is crystal clear that the power can be exercised only
when the court imposes sentence by which fine does
not form a part. In the case in hand, a court having
sentenced to imprisonment, as also fine, the power
under subsection
(3) of Section 357 could not have
been exercised. In that view of the matter, the
impugned direction of the High Court directing
payment of compensation to the tune of Rs. one lakh
by the appellant is set aside."
9. It is evident from SubSection
(3) of section 357 of
the Code, that where the sentence imposed does not
include a fine, that is, where the sentence relates to
only imprisonment, the court, when passing
judgment, can direct the accused to pay, by way of
compensation, such amount as may be specified in the
order to the person who has suffered any loss or
injury by reason of the act for which the accused
person has been so sentenced. The reason for this is
obvious. Subsection
(1) of section 357 provides that
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where the court imposes a sentence of fine or a
sentence of which fine forms a part, the Court may
direct the fine amount to be applied in the payment
to any person of compensation for any loss or injury
caused by the offence, when compensation is, in the
opinion of the court, recoverable by such person in a
Civil Court. Thus, if compensation could be paid from
out of the fine, there is no need to award separate
compensation. Only where the sentence does not
include fine but only imprisonment and the court
finds that the person who has suffered any loss or
injury by reason of the act of the accused person,
requires to be compensated, it is permitted to award
compensation under compensation under section
357(3).”
18 Mr.Kumbhakoni has relied upon later judgment of the
Honourable Supreme Court reported in (2012) 8 SCC 721 (R.Mohan v/s
A.K.Vijaya Kumar) and particularly paragraphs 29 and 30, which read
thus:“
29. The idea behind directing the accused to pay
compensation to the complainant is to give him
immediate relief so as to alleviate his grievance. In
terms of Section 357(3) compensation is awarded for
the loss or injury suffered by the person due to the act
of the accused for which he is sentenced. If merely an
order directing compensation is passed, it would be
totally ineffective. It could be an order without any
deterrence or apprehension of immediate adverse
consequences in case of its nonobservance.
The whole
purpose of giving relief to the complainant under
Section 357(3) of the Code would be frustrated if he
is driven to take recourse to Section 421 of the Code.
Order under Section 357(3) must have potentiality to
secure its observance. Deterrence can only be infused
into the order by providing for a default sentence. If
Section 421 of the Code puts compensation ordered to
be paid by the Court on a par with fine so far as
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mode of recovery is concerned, then there is no reason
why the court cannot impose a sentence in default of
payment of compensation as it can be done in case of
default in payment of fine under Section 64 IPC. It is
obvious that in view of this, in Vijayan [(2009) 6
SCC 652], this Court stated that the above mentioned
provisions enabled the Court to impose a sentence in
default of payment of compensation and rejected the
submission that the recourse can only be had to
Section 421 of the Code for enforcing the order of
compensation. Pertinently, it was made clear that
observations made by this Court in Hari Singh
[(1988) 4 SCC 551] are as important today as they
were when they were made. The conclusion, therefore,
is that the order to pay compensation may be
enforced by awarding sentence in default.
30. In view of the above, we find no illegality in the order
passed by the learned Magistrate and confirmed by
the Sessions Court in awarding sentence in default of
payment of compensation. The High Court was in
error in setting aside the sentence imposed in default
of payment of compensation.”
19 Thus, the law is that if fine is imposed by the Magistrate for
an offence punishable under Section 138 of the Negotiable Instruments
Act, 1881, then, it is not permissible to resort to Section 357(3) of the
Code of Criminal Procedure, 1973 and award any compensation. But, it is
not as if the compensation is awarded under Section 357 that the amount
can be recovered only by taking recourse to Section 421. In the event the
amount of compensation is not paid, the accused can be directed to
undergo sentence of imprisonment in default of payment of
compensation. Therefore, the punishment in default of payment of
compensation can be awarded and the recovery by other measures as
provided in Section 421 of the Code of Criminal Procedure, 1973 is not
the only power to ensure payment or recovery of compensation. If the
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above is legislative mandate, then, one will have to see whether the order
passed by the Trial Magistrate in the present case is of a nature incapable
of being questioned by way of an Appeal under Section 376 of the Code of
Criminal Procedure, 1973.
20 Section 376 has been reproduced by us above. That is
entitled “No appeal in petty cases”. Therefore, even if Section 374 of the
Code of Criminal Procedure, 1973 provides for an appeal, in terms of subsection
(2) thereof, that is subject to Sections 375 and 376.
21 Therefore, an Appeal in petty cases is not provided. What is a
petty case must, therefore, be construed in terms of the language of
Section 376 of the Code of Criminal Procedure, 1973. Therein, if this High
Court passes only a sentence of imprisonment for a term not exceeding six
months or fine not exceeding Rs.1,000/or
both such imprisonment and
fine and where in terms of clause (b), the Court of Sessions or a
Metropolitan Magistrate passes a sentence of imprisonment for a term not
exceeding 03 months or fine not exceeding Rs.200/or
where the fine
itself is not exceeding Rs.100/as
provided in clause (c), then, there
cannot be any appeal by a convicted person. However. Mr.Kumbhakoni
relies upon the proviso in Section 376 and urges that an Appeal may be
brought against any such sentence “if any other punishment is combined
with it”. Mr.Khan, learned counsel appearing for the original
Complainant, on the other hand, would urge that assuming the proviso is
attracted, still the case is not covered by that proviso because of the
wording of Clause (ii) below the proviso.
22 To our mind, if one peruses the order passed by the Trial
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Court in this case, that will have to be read in its entirety and so read, the
sentence is not only restricted to suffer Simple Imprisonment till rising of
the Court by each, but there is a direction to jointly and severally pay
compensation of Rs.15 lacs to the original Complainant under Section
357(3) of the Code of Criminal Procedure, 1973 within three months. In
default, the sentence of Simple Imprisonment of six months has been
imposed. In such circumstances if one peruses clause (b) of Section 376,
this order cannot be seen as restricted to only imposing punishment of
Simple Imprisonment till rising of the Court or fine not exceeding
Rs.200/.
Assuming that the compensation is akin to fine as is urged, still
the term of six months in default thereof would go to show that the
matter is not covered by Section 376(b). In any event, the learned
Additional Sessions Judge was in error in holding that the said order is
not covered by the proviso also.
23 In this case, the learned Judge has relied upon a judgment of
the Allahabad High Court reported in AIR (34) 1947 Allahabad 169
(Kunj Behari v/s Emperor). That judgment has been carefully perused by
us. In that judgment, the facts were that there was conviction on two
counts under Section 379 of the Indian Penal Code. There was fine of
Rs.25/on
each count. Against this order the Appellant approached the
Sessions Court and filed an application and submitted that it should be
treated as an Appeal or Revision. That application was rejected. The
Appellant (Kunj Behari) approached the Allahabad High Court and the
Division Bench found that in view of the amendment that was made to
the provision then existing, namely, Section 415 of Cr.P.C., an appeal
would be allowed. Relevant part of the judgment reads thus:“
2. This revision was referred to a Bench on account of
difference between this Court and th Oudh Chief Court
on the question whether, in such circumstances, an
appeal lay to the Sessions Judge or a revision lay. The
reasons for the views of the two Courts are to be found
in AIR 1937 Oudh 524 and in ILR (1942) ALL 665. The
Allahabad view that no appeal lay when a person is
sentenced to two different punishments of the same kind
for two offences unless the aggregate of the punishments
justified an appeal was repeated in AIR 1943 ALL 18. It
is not necessary to go into those reasons again in view of
the amendment made in S.415. The difference in the
two views arose on account of the nonamendment
of
S.415, Criminal P.C., simultaneously with the
amendments of Ss.413 and 414, Criminal P.C.. As a
result of the amendment made in S.415, Criminal P.C.,
this Section now reads as follows:
“An Appeal may be brought against any sentence
referred to in S.413 or S.414 by which any punishment
therein mentioned is combined with any other
punishment but no sentence which would not otherwise
be liable to appeal shall be appealable merely on the
ground that the person convicted is ordered to find
security to keep the peace.”
It is clear now that an appeal is allowed under S.415 if
any punishment mentioned in either S.413 or S.414 is
combined with any other punishment. In other words, in
cases which would come under S.413, Criminal P.C., an
appeal would be allowed under S.415 in which a
sentence of fine and a sentence of imprisonment or any
sentence other than a sentence of fine are also passed. In
cases which come under S.414, an appeal would be
allowed under S.415 if the sentence of fine is combined
with any other sentence. No appeal would be allowed
under S.415 in cases which otherwise come under S.413
unless the aggregate sentence of imprisonment exceeds
one month in the case of a sentence passed by a Court of
Session or a sentence of fine exceeding Rs.50, is passed
in case of such fine being imposed by the Court of
Session or the District Magistrate or other Magistrate of
the first class. An appeal would be allowed under S.415
against orders passed in a summary trial if the
aggregate sentence of fine exceeds Rs.200. This was the
view about S.415 prior to the amendment in 1923 and
is the view which was taken by this Court in its earlier
cases. Any other view would, in some cases, go against
the provisions of S.35(3), Criminal P.C.. If two sentences
of imprisonment totaling less than a month are passed
by a Court of Session an appeal would not be allowable
in view of the provisions of S.35(3), Criminal P.C., as it
provides that for purposes of appeal consecutive
sentences will be deemed to be one sentence. According
to the contrary view urged before us an appeal in such
cases would be allowable under S.415, Criminal P.C..
We, therefore, hold that the order passed on the
applicant by the Magistrate, first class, is not appealable
as he was sentenced to two separate sentences of fine of
Rs.25 each.”
24 A perusal of the same would reveal that firstly the wording of
Section 415 of the old Code of Criminal Procedure and the present
provision, namely, Section 376 of the Code of Criminal Procedure, 1973 is
not identical. In any event, what was held by the Division Bench is that an
appeal would be allowed under the provision in question against an order
in which a sentence of fine and a sentence of imprisonment or any
sentence other than a sentence of fine are also passed. Therefore, we do
not think that the observations of the Division Bench of the Allahabad
High Court would enable us to uphold the view taken by the learned
Additional Sessions Judge in the present case.
25 In fact the learned Judge erroneously concluded that the
sentence imposed is only Simple Imprisonment till rising of the Court and
no fine was imposed. A complete reading of the order would reveal that
the learned Trial Judge has imposed sentence of Simple Imprisonment
after the conviction. That Simple Imprisonment was till rising of the Court
and it is not disputed before us that it is a sentence. However, the order
does not end there. The learned Judge proceeds to direct payment of
compensation and if the payment is not made within three months, the
default sentence of six months has been imposed. Therefore, if the
compensation is equivalent to fine, then, that far exceeds the figure
stipulated in Section 376(b). By proviso it has been clarified that if there
is sentence and any other punishment is combined with it, then, that is
appealable because what has been done in this case is that a direction for
imprisonment in default in payment of fine, is not included in the
sentence. The sentence imposed is of Simple Imprisonment till rising of
the Court and other punishment is combined with it.
26 Our above view finds support in the later judgment of the
same Allahabad High Court reported in AIR (34) 1947 Allahabad 366
(Chhote v/s Emperor). There, what happened was that the Applicant was
convicted by the First Class Magistrate in summary trial for an offence
under Rule 81(4) of the Defence of India Rules for having contravened
certain provisions of an order made by the District Magistrate on
08.09.1945 relating to Khandsari Sugar. The conviction and sentence after
the trial ended in imposition of fine of Rs.100/and
it was further ordered
that all items of the property referred in paragraphs 1 and 2 of the
judgment shall be forfeited and their sale proceeds shall be deposited in
the Treasury. The Appeal of the Applicant was summarily dismissed and
what the Allahabad High Court held reads thus:“
4. It is obvious that it would not be necessary for me to
pass any order upon the reference made by the
Additional Sessions Judge if it is found that the
application in revision is well founded and must
prevail. I have considered that application very
carefully and have heard learned counsel for the
Crown and I find that the learned Additional Sessions
Judge has erred in law in holding that the appeal
made to him by the applicant from his conviction in
the summary trial held by a First Class Magistrate
was not competent in view of S.414, Cr.P.C.. Section
414, Criminal P.C. runs as follows:“
Not withstanding anything hereinbefore contained
there shall be no appeal by a convicted person in any
case tried summarily in which a Magistrate
empowered to act under S.260 passes a sentence of
fine not exceeding two hundred rupees only.”
It may be noted here that a general right of appeal is
given by S.408, Cr.P.C. to any person convicted on a
trial held by an Assistant Sessions Judge, a District
Magistrate or other Magistrate of the First Class.
Now S.414 places some restrictions on that general
right. Being a provision of a restrictive character, it
must be strictly construed as far as possible in favour
of the subject as against the Crown. The bar laid
down in S.414 must be applied only to a case which
comes clearly within its four corners, that is, to a case
in which a Magistrate empowered to act under S.260
passes a sentence of fine not exceeding two hundred
rupees only. Any case in which a Magistrate
empowered to act under S.260 passes a sentence
which is not merely one of fine not exceeding two
hundred rupees only but also a sentence of some
other character, the bar laid down by S.414, Cr.P.C.
cannot apply. The simple question in the present case,
therefore, is whether the order of forfeiture of
property passed by the trying Magistrate is or is not a
part of the sentence imposed upon the applicant. It
may be pointed out here that the property confiscated
in the present case was much more than Rs.1,000 in
value and under S.32, Cr.P.C. a Magistrate of the
First Class cannot impose a fine exceeding one
thousand rupees. The order of forfeiture, however, is
justified by Rule 81(4) of the Defence of India Rules
which runs as follows:
“If any person contravenes any order made under this
Rule, he shall be punishable with imprisonment for a
term which may extend to three years or with fine or
with both, and if the order so provides any Court
trying such contravention may direct that any
property in respect of which the Court is satisfied that
the order has been contravened shall be forfeited to
His Majesty.”
Now, we find that the order of the District Magistrate
of Muzaffarnagar dated 08.09.1945, contained the
following provision at the end:
“Any person contravening any of the provisions of this
order shall be liable to punishment under subr
(4) of
R.81, Defence of India Rules with imprisonment for a
term which may extend to 3 years or with fine or
with both and without prejudice to any other
punishments to which he may be liable, any Court
trying the offence shall order that the material
together with its packages, if any, in respect of which
the Court is satisfied that the offence has been
committed be forfeited to His Majesty unless for
reasons to be recorded in writing the Court is of
opinion that the direction should not be made in
respect of the whole or a part of the property.”
5. It is clear that the order made by the District
Magistrate prescribes forfeiture as one of the modes
of punishment and the same conclusion is clearly
deducible from the language of R.81(4), Defence of
India Rules. It must, therefore, be held that in the
present case the trying Magistrate has imposed upon
the applicant not merely a fine of Rs.100 but a
further punishment of forfeiture of certain property
belonging to him. The case is, therefore, outside the
ambit of S.414, Criminal P.C. and I think it would be
wrong in these circumstances to hold that the
applicant had no right of appeal.”
As a result of the above discussion, the Revision was allowed
by holding that the Appeal was maintainable.
27 What we find is that this view has been followed in the
judgment of Lal Chand v/s Emperor, reported in AIR (35) 1948 Allahabad
107, by the same High Court, namely, Allahabad High Court. In that, the
learned Single Judge held that when forfeiture is added to the sentence of
fine, an appeal would lie, even though the sentence of fine itself may not
have been appealable. (See paragraph 4 at page 108). Thus, by referring
to Section 53 of the Indian Penal Code and holding that forfeiture was
punishment and which was added to the sentence of fine, the learned
Single Judge held that the order was appealable.
28 The above view also finds support in the judgment of the
Allahabad High Court reported in 1954 Cr.L.J. 1348 (Aziz Khan v/s
State). (See paragraphs 3 to 5).
29 Finally the learned Single Judge's judgment reported in AIR
1962 Rajasthan 178 (Executive Officer, Municipal board, Rajgarh v/s
Harka Ram), would also show that in case of Section 415 of the old Code
as well and on parity of the language of that provision and proviso to
Section 376, the views referred by us hereinabove, have been reaffirmed.
In that behalf, useful reference could be made to paragraphs 6 and 7 of
the judgment of the Rajasathan High Court, which read thus:“
6. The first objection raised by learned counsel for the
appellant is, that the learned Additional Sessions
Judge had no jurisdiction to hear the appeal, since
the fine imposed by the SubDivisional
Magistrate
First Class was only Rs. 25/and
therefore no appeal
lay according to Section 413 Cr. P. C.. In reply, it was
urged by learned counsel for the accused that the
Magistrate had also imposed a recurring fine at the
rate of Rs. 2/8/per
day and therefore, Section 413
Cr. P. C. did not bar the appeal.
It is contended by learned counsel for the
appellant that the accused had filed the appeal in the
court of the Additional Sessions Judge only seven days
after the judgment of the trial court and therefore
even the recurring fine did not amount to more than
Rs.17/8/and
this added to the substantive fine of
Rs. 25/did
not exceed Rs. 50/.
According to him,
since the fine imposed by the Sub Divisional
Magistrate First Class did not exceed Rs. 50/the
only remedy which lay open to the accused was to
present a revision application to this Court and that
he had no right to file an appeal which was covered
by Section 413 Cr. P. C.
7. I have given due consideration to these arguments
and, in my opinion, the objection raised by learned
counsel for the appellant in this court is without any
force. Section 413 Cr. P. C. bars an appeal by a
convicted person only in those cases in which a High
Court passes sentence of imprisonment not exceeding
six months or of fine not exceeding two hundred
rupees, or in which a Court of Session passes a
sentence of imprisonment not exceeding one month or
in which a Court of Sessions or District Magistrate or
other Magistrate of the first class passes a sentence of
fine not exceeding fifty rupees only.
Now, it is true that the Sub Divisional
Magistrate had imposed a fine of Rs. 25/only
under
Section 165 of the Act, but at the same time, he
imposed a further fine of Rs. 2/8/per
day
commencing from 30th April, 1960, to an indefinite
period unless the accused were to comply with the
order closing the door within a week. It may be
observed that Section 413 Cr. P. C. contemplates the
imposition of a lump sum fine and it does not
envisage a case in which a recurring fine is imposed
upon the accused. It may be pointed out that an
appeal against the order of the Magistrate or the
sentence awarded by him may be preferred to any
court other than a High Court within a period of
thirty days from the date of the sentence or order
which is sought to be impugned.
Now, if in a case like the present one, an
accused prefers an appeal, say 25 days after the date
of the judgment, the recurring fine by that time at the
rate of Rs. 2/8/per
day would amount to Rs. 75/and
would thus certainly exceed the maximum limit
of Rs. 50/.
In those circumstances, it cannot be urged
with any justification that the total amount of fine
did not exceed Rs.50/and
therefore, an appeal
cannot lie. It may be further pointed out that the
legislature does not contemplate a distinction between
an appeal which is filed after seven days and an
appeal which is filed after 10, 15 or 25 days. All the
appeals stand on the same footing so long as they are
preferred within the prescribed period of limitation.
There is, therefore, no force in the contention
raised by learned counsel for the appellant to the
effect that the present appeal having been filed by the
accused within 7 days from the date of the
Magistrate's order, an appeal did not lie. It is clear
that Section 413 Cr. P. C. does not contemplate a case
of recurring fine and therefore whenever a recurring
fine is imposed by a court, an appeal against such an
order cannot be barred by this Section. The only
sentence which was covered by Section 413 Cr. P. C. in
the present case was the imposition of the fine of Rs.
25/by
the Magistrate, but even the order relating to
this fine became appealable according to the
provisions of Section 415 Cr. P. C., because that
punishment was combined with another punishment
by which a recurring fine was imposed. There is thus
no force in the contention raised by learned counsel
for the appellant and it is hereby dismissed.”
30 In the above circumstances what one finds, therefore, is that
the learned Judge has taken an extremely narrow or restricted view which
is not in accord with the legislative mandate. The legislative mandate is
that a person should not be deprived of a right of appeal if there is
combination of sentence and any other punishment. Pertinently, the
direction to undergo imprisonment in default of payment of compensation
is a punishment and that is not disputed. In that context we find that the
reliance placed by Mr.Kumbhakoni on the judgment of the Honourable
Supreme Court in the case of R.Mohan v/s A.K. Vijaya Kumar (supra), is
apposite. The Honourable Supreme Court has held that even a direction
to pay compensation coupled with a default sentence of imprisonment, if
that order of payment of compensation is not obeyed, cannot be said to be
illegal. That such sentence can be imposed and if such sentence is
imposed as in the present case in the same order and combining it as
noted above, then, the appeal filed in the present case was clearly
maintainable.
31 As a result of the above discussion, we are of the opinion that
the order of the learned Additional Sessions Judge impugned in this Writ
Petition cannot be sustained. It is, accordingly, quashed and set aside. The
Criminal Appeal No.136/2011 is restored to the file of the Court of
Sessions for Greater Mumbai at Sewree and it shall be decided in
accordance with law as expeditiously as possible and within a period of
four months from the date of receipt of a copy of this order. Rule made
absolute accordingly.
32 At this stage, Mr.Singh, learned counsel appearing for the
Petitioners, prays that there is an interim order in the Writ Petition and
which may be continued for a period of two weeks so as to enable the
Petitioners to apply for appropriate interim relief in the pending Criminal
Appeal and which stands revived by this order. None is appearing on
behalf of the original Complainant though the matter was notified on
Board for Pronouncement of Judgment. Without prejudice to the rights
and contentions of parties, the interim order passed in the Writ Petition to
continue for a period of two weeks only.
(S.B.Shukre, J) (S.C. Dharmadhikari, J)
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