Kumar J. Sujan & Others vs The State Of Maharashtra & Anr
2012 Latest Caselaw 331 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                      CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL WRIT PETITION NO. 2903 OF 2011




                                                     
     Kumar J. Sujan & Others.                                 ..       Petitioners
           Vs
     The State of Maharashtra & Anr.                          ..       Respondents




                                                    
           -

     Shri A.A. Kumbhakoni along with Shri Ravi Gurnani and Shri Shardul 
     Singh i/by Shri Sudhan Y. Amare and Ms. Deepali Prabhukhanolkar for 




                                        
     the Petitioners.
     Mrs. A.S. Pai, APP for the Respondent No.1-State.
                        
     Shri R.Satyanarayanan for the Respondent No.2.
     Shri   Kevic   Setalwad,   Additional   Solicitor   General   along   with   Ms. 
     Sushma Nagraj and Shri Anupam Surve i/by Shri Sandeep K. Shinde for 
                       
     Respondent No.3.
            -
      

                          CORAM  : A.S. OKA & SMT. SADHANA S. JADHAV, JJ 
   



     DATE ON WHICH SUBMISSIONS WERE HEARD :                   20TH OCTOBER, 2012


     DATE ON WHICH JUDGMENT IS PRONOUNCED:                    5th NOVEMBER, 2012





     JUDGMENT ( PER A.S. OKA, J )

1. The Petitioners were arraigned as Accused in a complaint

filed by the second Respondent for the offence punishable under

Section 138 read with Section 141 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

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convicted the Petitioners. The first and the second Petitioners ( second

and third Accused ) were sentenced to suffer simple imprisonment till

rising of the Court. The Petitioners ( first to third Accused) were jointly

and severally directed to pay compensation of Rs.15,00,000/- to the

Complainant under Section 357(3) of the Code of Criminal Procedure,

1973 ( hereinafter referred to as "the said Code") within a period of

three months from the date of judgment. In case of the default of

payment of compensation, the first and the second Petitioners were

sentenced to suffer simple imprisonment for six months. A criminal

Appeal was preferred by the Petitioners before the Sessions Court. By

order dated 24th August, 2011, the learned Additional Sessions Judge

dismissed the Appeal in limine in view of Clause (b) of Section 376 of

the said Code. The learned Judge held that the Appeal was not

maintainable in view of Clause (b) of Section 376 of the said Code.

Prayer (b) of this Petition reads thus:-

"(b) that this Hon'ble Court be pleased to declare that Sub-Sections (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."

Prayer (b1) of this Petition is for quashing and setting aside the order

dated 24th August, 2011 passed by the learned Additional Sessions

Judge and for a direction to restore the Appeal to be heard in

accordance with law. We must record here that the learned counsel

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appearing for the Petitioners, the learned counsel appearing for the

second Respondent and the learned Additional Solicitor General of

India have made submissions only as regards the prayer clause (b) of

this Petition and, therefore, we are passing order confined to the prayer

clause (b) of the Petition.

2. The learned counsel appearing for the Petitioners has made

detailed submissions. The learned counsel appearing for the

Petitioners submitted that the right to appeal against an order of

conviction is conferred by Section 374 of the said Code. He, however,

submitted that by virtue of Section 376, the said right is curtailed and

by the said provision, unreasonable, arbitrary and discriminative

conditions have been imposed based only on territorial jurisdiction of a

Court. He submitted that the right to appeal is made restricted or

conditional on whether the Magistrate who passed the order of

conviction was presiding over a Court in a metropolitan city or not. It is

submitted by the learned counsel appearing for the Petitioners that such

distinction made for taking away right of appeal in case of certain

orders of conviction passed by the learned Metropolitan Magistrate is

unconstitutional and unsustainable.

3. The learned counsel appearing for the Petitioners submitted

that by virtue of sub-clause (b) of section 376, the right of an Appeal

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against orders passed by the Metropolitan Magistrate of imposing a

sentence of imprisonment for a term not exceeding three months or of

fine not exceeding two hundred rupees or both such imprisonment and

fine has been taken away. He urged that such discrimination and

restriction brought about by the impugned provision is violative of the

Petitioners' fundamental rights under Articles 14 and 21 of the

Constitution of India. The learned counsel submitted that if a right to

appeal is available to a citizen convicted in a non-metropolitan area,

then same right by law, must be made available to a citizen in a

metropolitan area as well.

4. The learned counsel for the Petitioner submitted that the

right to prefer an appeal in cases of conviction is to be adjudged on a

different touchstone than a right to appeal in cases of decrees and

orders of civil courts. He submitted that several other consequences

follow from a conviction. Not only that the person's liberty taken away,

but the conviction renders a stigma on the convict. He submitted that

the right to life under Article 21 of the Constitution of India is wide

enough to cover the right of a convict to file an Appeal against an order

of conviction. He submitted that the right to file an appeal against an

order of conviction is a fundamental right guaranteed under Part III of

the Constitution of India, and more specifically under Article 21.

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5. The learned counsel appearing for the Petitioners submitted

that an order of conviction takes away personal liberty and

consequentially takes away aspects of his life, like adding a stigma upon

him, disqualifying him from public posts, assignments, vocations and

employments. The learned counsel submitted that such an order by law

is appealable in the light of the wide amplitude of Article 21 of the

Constitution of India and that the said right cannot be interfered with

or made conditional by the impugned provisions.

6. The leaned counsel appearing for the Petitioners submitted

that not only in view of Article 21 of the Constitution of India, but also

in view of several other international treaties and based on the basic

principles of justice, equity and fairness, a convict has an inherent and

fundamental right to at least one challenge to his conviction on facts, by

way of filing an appeal and that the same is the most minimum

safeguard which can be provided in a civilized and fair society. He

submitted that the right is inherent in Article 21 and cannot be taken

away or conditioned or in any manner scuttled or impaired by any

provision of law.

7. Learned counsel appearing for the Petitioners invited our

attention to Section 3 as well as Section 6 of the said Code. He

submitted that the Judicial Magistrates of First Class are on par with the

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Metropolitan Magistrates. He submitted that in the hierarchy of

Criminal Courts specified in Section 6, they form a part of the same

class. He submitted that the duties and functions discharged by a

Judicial Magistrate, First Class elsewhere are being discharged by a

Metropolitan Magistrate in metropolitan areas. He also invited our

attention to the provisions regarding subordination of the Judges. He

invited our attention to the Sections 15, 16 and 19 of the said Code.

He, therefore, submitted that the Judicial Magistrates, First Class and

the Metropolitan Magistrates exercise the same judicial powers but in

different areas. His submission is that thus the Courts of Judicial

Magistrates, First Class and the Court of the Metropolitan Magistrates

form one class. He invited our attention to Section 376 of the said

Code. He pointed out that in case of an order of conviction passed by a

Judicial Magistrate, First Class of imprisonment for a term not

exceeding three months, Section 374 provides for an Appeal against the

order of conviction. However if the same sentence is imposed by a

Metropolitan Magistrate, Clause (b) of Section 376 of the said Code

takes away the right of the Accused to prefer an Appeal against the

order of conviction. He pointed out Clause (c) of Section 376 and

submitted that if the accused is sentenced by a Metropolitan Magistrate

and he is ordered only to pay a fine of Rs.200/, there is no right of an

Appeal against the order of conviction. However, if the same sentence

is imposed by a Judicial Magistrate, First Class, the right of Appeal is

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available to the Accused. He, therefore, submitted that two equals are

being treated as unequals. He submitted that the Clause (b) of Section

376 applies to the Appeals against the orders of conviction passed by

both the Court of Sessions and the Court of Metropolitan Magistrates.

He submitted the Courts are of different ranks and classes and

therefore, they cannot be clubbed together.

8. He submitted that all the decisions of the Apex

Court in relation to a right of Appeal being a statutory right are in the

matters arising out of civil law. He submitted that in the present case,

the issue of deprivation of right of Appeal against certain orders of

conviction passed by the learned Metropolitan Magistrate will have to

be considered in the context of fundamental rights guaranteed under

Article 21 of the Constitution of India. He, therefore, submitted that

Sub-clauses (b) and (c) of Section 376 of the said Code are

unconstitutional and ultra vires Part III of the Constitution of India.

9. Learned counsel appearing for the original Complainant

invited our attention to several provisions of the said Code which show

that the Legislature has treated the Judicial Magistrates, First Class

differently from the Metropolitan Magistrates. He invited our attention

to section 281 of the said Code. He also invited our attention to

Section 355 of the said Code which makes a separate provision as

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regards the judgments of the learned Metropolitan Magistrates. He,

therefore, submitted that the Metropolitan Magistrates form a separate

class which is distinct from the class of Judicial Magistrates, First Class.

10. The learned Additional Solicitor General of India has made

detailed submissions. His basic submission is that there is no vested

right of an Appeal and a right of Appeal is always created by a statute.

He submitted that it is for the Legislature to decide whether right to

Appeal should be conditional or unconditional. He has invited our

attention to the various decisions of the Apex Court. He has also invited

our attention to the 14th Report on Law Commission and submitted that

the historical background shows that traditionally the Metropolitan

Magistrates (earlier Presidency Magistrates) were always being treated

as a separate class of judicial officers as distinguished from Judicial

Magistrates, First Class. Inviting our attention to the Section 8(1) of

the said Code, he submitted that there is a clear and intelligible

differentia between a Metropolitan area and a District area including in

respect of population, commerce, size of territory, economic structures,

affluence etc. He submitted that while making the classification, even

propensity towards the economic offences has been considered.

11. Learned counsel appearing for the Petitioner relied upon

certain observations made by the Apex Court in the case of Babu Bajirao

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Shinde v. The State of Maharashtra (1971(3) SCC 337). He also relied

upon a decision of Division Bench of this Court in the case of Narendra

Keshrichand Fuladi & Another v. State of Maharashtra (1985 Mh.L.J. 1).

He also relied upon certain observations made by the Apex Court in the

case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. [(2007)6

SCC 528]. The learned Additional Solicitor General placed reliance on

a decision of the Apex Court in the case of Competition Commission of

India v. Steel Authority of India Limited Another [(2010)10 SCC 744].

12. We have carefully considered the submissions. In the facts

of the case, the conviction of the first and second Petitioners is till the

rising of the Court and there is no fine imposed. We must make it clear

that we are making these observations only for a limited purposes of

considering the prayer Clause (b) and we are not dealing with the

submission of the Petitioners about nature of the direction issued to pay

compensation. It will be necessary to make a reference to the

provisions of Sections 374 and 376 of the said Code. The said

Sections read thus:

"374. Appeals from convictions.-- (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on

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a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person

convicted at the same trial], may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,--

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b) ig sentenced under Section 325, or

(c) in respect of whom an order has been made or a sentence has been passed

under Section 360 by any Magistrate, may appeal to the Court of Session."

"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

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(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

(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."

Section 376 carves out an exception to the general rule in Section 374

which provides for an Appeal against the orders of conviction.

13. As far as the nature of right of Appeal is concerned, a

reference will have to be made to a decision of the Apex Court in the

Competition Commission of India (supra). In Paragraphs 50 and 51 of

the said decision, the Apex Court has observed thus:-

"50. The principle of "appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure" is now well settled.

The right of appeal may be lost to a party in

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face of relevant provisions of law in appropriate cases. It being a creation of a statute, legislature has to decide whether the

right to appeal should be unconditional or conditional. Such law does not violate

Article 14 of the Constitution. An appeal to be maintainable must have its genesis in the authority of law. Reference may be made to M. Ramnarain (P) Ltd. v. State Trading Corpn. Of India Ltd., (1983)3 SCCC 75 and Gujarat Agro

Industries Co. Ltd. v. Municipal Corpn. Of the City of Ahmedabad (1999)4 SCC 468."

51. Right of appeal is neither a natural nor an

inherent right vested in a party. It is a substantive statutory right regulated by the

statute creating it. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999)3 SCC 722 and Kashmir Singh v. Harnam Singh (2008)12 SCC

796 may be referred to on this point. Thus, it is evidence that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It

essentially should be provided by the law in force. In absence of any specific provision

creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party."

(emphasis added)

14. Learned counsel appearing for the Petitioners has fairly

invited our attention to the decision of the Apex Court in the case of

Om Parkash Batish v. Ranjit alias Ranbir Kaur & Others [(2008)12 SCC

212]. This was a case where the Apex Court dealt with a limited right

of appeal conferred by Section 30 of the Workmen's Compensation Act,

1923. In Paragraph 15 of the said decision, the Apex Court held thus:-

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"15. The right to file an appeal is a statutory right. Parliament may not provide such a right at all. The right to file an appeal can be hedged

with conditions. A limited right can also be conferred."

In the case of Kondiba Dagadu Kadam vs Savitribai Gopal Gujar

[(1999)3SCC 796], the Apex Court in Paragraph 4 held thus:

"It has to be kept in mind that the right of appeal is neither a natural nor an inherent

right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the

relevant time."

(emphasis added)

15. Thus, the law seems to be that there is no inherent right of

an Appeal and the same has to be conferred by a statute. The

Legislature can confer the said right or can make available the said right

conditionally. The Legislature may withdraw the said right by

amending the Statute which confers the right of Appeal. Normally such

amendment does not affect pending proceedings.

16. The learned counsel appearing for the Petitioner relied upon

the following observations made by the Apex Court in the case of Babu

Rajirao Shinde vs The State (Supra):

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"The right to have at least one appeal particular in serious cases is a substantial right and the same should not be denied

except on substantial grounds. In our opinion this was a fit case for entertaining the appeal and disposing of the same after a regular hearing."

(emphasis supplied)

By the order under challenge before the Apex Court, an

Appeal against conviction was summarily dismissed by the High Court.

The observations of the Apex Court are in the context of the facts of the

case. Hence, the said decision will not help the Petitioners. The decision

of the Division Bench of this Court in the case of Narendra(supra) lays

down well settled principles as regards reasonable classification.

17. The learned counsel appearing for the Petitioner relied

upon the observations made by the Apex Court in Paragraph 66 of the

decision of Dilip S. Dahanukar (supra) which reads thus:-

"66. The right to appeal from a judgment of conviction vis-a-vis the provisions of Section 357 of the Code of Criminal Procedure and other

provisions thereof, as mentioned hereinbefore, must be considered having regard to the fundamental right of an accused enshrined under Article 21 of the Constitution of India as also the international covenants operating in the field."

The issue before the Apex Court was whether in the Appeal

against the order of conviction, a very onerous condition of deposit of

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compensation amount can be imposed for suspension of sentence which

will amount to depriving the accused his right of Appeal. The Apex

Court considered the issue in this context. In Paragraph 72, the Apex

Court answered the issues which read thus:-

"72. We, therefore, are of the opinion :

(i) in a case of this nature, sub-section (2) of Section 357 of the Code of Criminal

Procedure would be attracted even ig when the appellant was directed to pay compensation;

                           (ii)    the   appellate   court,   however,   while 
                        
                                   suspending the sentence, was entitled to 
                                   put   the   appellant   on   terms.     However, 
                                   no   such   term   could   be   put   as   a 
                                   condition   precedent   for   entertaining 
      

                                   the appeal which is a constitutional and 
                                   statutory right;
   



                           (iii)   the amount of compensation must be a 
                                   reasonable sum;





                           (iv)    the   court,   while   fixing   such   amount, 
                                   must have regard to all relevant factors 
                                   including   the   one   referred   to   in   sub-
                                   section (5) of Section 357 of the code of 
                                   Criminal Procedure; 





                           (v)     no   unreasonable   amount   of 
                                   compensation   can   be   directed   to   be 
                                   paid."

Thus, the observations made by the Apex Court in

Paragraph 66 of its decision in the case of Dilip S. Dahanukar (supra)

are in the context of submission made before it that imposing an

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onerous condition while passing an order on Application under Section

389 of the said Code may virtually amount to depriving an Accused of

his right to prefer an Appeal already conferred the Statute thereby

infringing the right under Article 21 of the Constitution of India. When

a right is conferred by a statute on an accused of preferring an Appeal

against the order of conviction, the order of the Appellate Court of

imposing a very stringent condition thereby virtually depriving the

accused of his right of Appeal amounts to infringing the fundamental

right under Article 21 of the Constitution. If the right of Appeal is taken

away by the statute itself , it will not amount to infringement of Article

14 as held by the Apex Court in Paragraph50 of the decision in the case

of the Competition Commission of India(supra).If the Statute itself

takes away the right of Appeal, violation of Article 21 cannot be alleged

in as much as there is no inherent right of Appeal.

18. Perusal of the provisions of the said Code shows that there

are four classes of Magistrates under the said Code. There are

Metropolitan Magistrates, Judicial Magistrates of the First Class,

Judicial Magistrates of the Second Class and the Executive Magistrates.

It is true that under Section 6 of the said Code which provides for

classes of criminal Courts, Judicial Magistrates of First Class and

Metropolitan Magistrates in Metropolitan area are together placed in

the second category. The Metropolitan areas have been defined under

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Section 8 of the said Code. Sub-section (2) thereof provides that the

Presidency-towns of Bombay, Culcutta and Madras and the city of

Ahmedabad shall be deemed to be declared under Sub-section (1) to be

a metropolitan areas. Sub-section (1) provides that the State

Government may, by notification, declare that any area in the State

comprising a city or town, the population of which exceeds one million

to be a metropolitan area. Thus, a Metropolitan Magistrate can be

appointed in a metropolitan area which is a separate and distinct area

from the other parts of the State. At this stage, it will be also

necessary to look into the provisions of Chapter XXVII of the said Code

which deal with the judgments. Sections 353 and 354 are general

provisions dealing with the judgments by criminal Courts. However,

Section 355 makes a special provision which carves out an exception to

Sections 353 and 354 in case of Metropolitan Magistrates. The Section

lays down what particulars shall be recorded in the judgment. It will

be also necessary to make a reference to Section 395 of the said Code.

Sub-section (1) lays down that if any Court is satisfied that a case

involves the questions of the nature specified in Sub-section (1) thereof,

the Court is empowered to make a reference to this Court. However,

Sub-section (2) provides that even when the provisions of Sub-section

(1) do not apply ,a Metropolitan Magistrate or a Court of Sessions is

entitled to refer a case for decision of this Court on any question of law

arising in such a case. Section 404 of the said Code makes a special

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provision which applies when the High Court or the Court of Sessions

calls for record of any trial held by a Metropolitan Magistrate. It

provides that in such a case, the Metropolitan Magistrate will submit

with the record a statement setting forth the grounds of his decision or

order and any facts which he thinks material to the issue and the

Revisional Court shall consider the said statement before overruling or

setting aside the said decision. This provision is required to be enacted

because of the special provision regarding judgment contained in

Section 355 of the said Code. Section 354 of the said Code specifically

provides that every judgment shall contain points for determination, the

decision thereon and the reasons for the decision. In view of Section

355 of the said Code, Section 354 will not apply to a judgment of the

learned Metropolitan Magistrate. Clause (i) of Section 355 provides

that in all cases in which an appeal lies from the final order either

under Section 373 or under sub-section (3) of Section 374, a brief

statement of the reasons for the decision shall be incorporated in the

Judgment. Thus, Section 355 makes a major departure from the

provisions relating to the judgment which apply to all the Courts

including the Courts of Judicial Magistrates of First Class. Thus, it

appears from the scheme of the said Code that the Metropolitan

Magistrates in metropolitan area and the Judicial Magistrates of First

Class in other parts of the State may be exercising the same jurisdiction

or powers, but under different provisions of the said Code, the

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Metropolitan Magistrates have been treated separately and distinctly

from the Judicial Magistrates of First Class.

19. The learned Additional Solicitor General has placed

reliance on a decision of the Apex Court in the case of State of

Nagaland vs. Ratan Singh (AIR 1967 SC 212). Paragraph 31 read thus:-

"31. A similar attempt is made by comparing these Rules with the Criminal Procedure Code

applicable in the rest of India. It is contended that this leads to discrimination. We think that the exigency of the situation clearly

demands that the Criminal Procedure Code should not apply in this area. It is not discrimination to administer different laws in different areas. The Presidency towns have got special procedures which do not obtain in

other areas. We have known of trial by jury in one part of India for an offence which was

not so triable in another. Similarly, what is an offence in one part of India is not an offence in another. Regional differences do not necessarily connote discrimination and laws

may be designed for effective justice in different ways in different parts of India if people are not similarly circumstanced."

(emphasis added)

20. 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

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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.

21. 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.

That is the ratio of the decision in case of Dilip Dahanukar (supra).

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

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to provide for an Appeal against a particular category of orders of

conviction.

22. Thus, there is no merit in the prayer clause (b) and the

same will have to be rejected by holding that clauses (b) and (c) of

Section 376 of the Code of Criminal Procedure, 1973 are legal and

valid.

23.

For consideration of other prayers, place this Petition on

11th December, 2012.

      ( SMT. SADHANA S. JADHAV, J )                                 ( A.S. OKA, J )