Madras High Court
Purushoth vs Jayabal on 30 June, 2022
Crl.A.SR.No.27630 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.SR.No.27630 of 2022
1. Purushoth
2. Sakthivel
3. Ranganathan .. Appellants
Vs
1. Jayabal
2. State rep. by
The Sub-Inspector of Police
Gingee Police Station
Villupuram District.
(Crime No.234 of 2015) .. Respondents
Prayer: Criminal Appeal filed under Section 374(2) of CRPC, to call for
records and set aside the judgment dated 07.06.2022 made in C.A.No.91 of
2018 on the file of II Additional District and Sessions Court, Tindivanam
and acquit them.
For the Appellants : Mr.P.M.Duraiswamy
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Crl.A.SR.No.27630 of 2022
ORDER
Office is objecting to the maintainability of the criminal appeal.
2. The petitioner in this case was acquitted by judgment dated
19.07.2018 by learned Judicial Magistrate, Gingee, of the offence
complained against him. As against the same, the victim had filed
Crl.A.No.91 of 2018. In which presently, after remand from the High
Court by judgment dated 07.06.2022, the appellant is convicted for the
offence under Sections 294(b) and 323 of the Indian Penal Code.
Aggrieved by the same, the present appeal is filed.
3. The objection of the office is that under Section 374, only if the
person is convicted on trial by the learned Sessions Judge or the learned
Additional Sessions Judge or the trial held by any other Court, in which
the sentence for imprisonment, for more than seven years has been passed
against him, then only the appeal will lie to the High Court. In this case,
the finding of conviction is in appeal and therefore, the petitioner has to
file only a revision petition and not an appeal.
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Crl.A.SR.No.27630 of 2022
4. Learned counsel appearing on behalf of the appellant would
submit that the word “trial”, finding place under Section 374(2) has to be
interpreted according to the context. The Hon'ble Supreme Court and this
Court have already in a number of cases have held that the appeal is a
continuation of trial and therefore, in that view of the matter, this appeal is
also arising one out of the trial. He would rely upon the judgment of the
Hon'ble Supreme Court of India in Dilip S. Dahanukar vs Kotak
Mahindra Co. Ltd. & Another1 and it is useful to quote relevant portion of
the said judgment, which is reproduced hereunder:
''An appeal is indisputably a statutory right and an
offender who has been convicted is entitled to avail the right
of appeal which is provided for under Section 374 of the
Code. right of Appeal from a judgment of conviction
affecting the liberty of a person keeping in view the
expansive definition of Article 21 is also a Fundamental
Right. Right of Appeal, thus, can neither be interfered with
or impared, nor it can be subjected to any condition.
1 (2007) 6 SCC 528
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Crl.A.SR.No.27630 of 2022
We may take notice of some of the decisions operating in the
filed in this behalf.
In Garikapati Veeraya vs N.Subbiah Choudhry & Ors.2,
this Court opined:
''(i) That the legal pursuit of a remedy, suit, appeal
and second appeal are really but steps in a series of
proceedings all connected by an intrinsic unity and are to be
regarded as one legal proceedings.
(ii) The right of appeal is not a mere matter of
procedure but is a substantive right.
(iii) The institution of the suit carries with it the
implication that all rights of appeal then in force are
preserved to the parties thereto till the rest of the career of
the suit.
2 AIR 1957 SCR 540
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Crl.A.SR.No.27630 of 2022
(iv) The right of appeal is a vested right and such a
right to enter the superior Court accrues to the litigant and
exists as on and from the date the lis commences and
although it may be actually exercised when the adverse
judgment is pronounced such right is to be governed by the
law prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of its
decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only
by a subsequent enactment, it is so provides expressly or by
necessary intendment and not otherwise.''
This Court, in Babu Rajirao Shinde vs. The State of
Maharashtra3, observed that a convicted person must be
held to be at least entitled to one appeal as a substantial
right.
Yet again in Siddanna Apparao Patil vs. The State of
3 (1971) 3 SCC 337
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Crl.A.SR.No.27630 of 2022
Maharashtra4, this Court held:
''The right to prefer an appeal from sentence of Court
of Sessions is conferred by Section 410 of the Criminal
Procedure Code. The right to appeal is one both on a matter
of fact and a matter of law. It is only in cases where there is
a trial by jury that the right to appeal is under Section 418
confined only to a matter of law.'' ''
Therefore, relying upon the said passages, learned counsel would submit
that even the Hon'ble Supreme Court has held that the accused should be
having the right of at least one appeal and therefore, the present appeal
filed by him should be entertained by the registry.
5. I am afraid that I could agree with learned counsel for the
petitioner. Even though the Hon'ble Supreme Court of India as well as this
Court has held that an appeal is a continuation of proceedings or a
continuation of trial, it is held so in the context of the facts of those
judgments. As far as the remedies of appeal and revision are concerned,
the Hon'ble Supreme Court of India in the recent judgment in Parvinder
4 (1970) 1 SCC 547
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Crl.A.SR.No.27630 of 2022
Kansal vs NCT of Delhi and another5, has categorically held that the
provisions of the code of criminal procedure should be read as such and
can neither be enlarged nor be restricted by the Courts. As a matter of fact,
Section 372 of the Code of Criminal Procedure reads as under:
“Section 372.No appeal to lie unless otherwise
provided. - No appeal shall lie 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:
[Provided that the victim shall have a right to prefer an
appeal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall lie to the
Court to which an appeal ordinarily lies against the order of
conviction of such Court.]”
(emphasis supplied)
6. Section 374 provides only as against the conviction in a trial by
the Sessions Judge or by other Court, wherein, the conviction is for more
5 2020 SCC Online SC 685
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Crl.A.SR.No.27630 of 2022
than seven years. Therefore, except as expressly provided by Section 374,
no appeal would lie. The Hon'ble Supreme Court of India in the above said
judgment, has clearly laid down the same and it will be useful to extract
paragraph 10 hereunder:
“10...... It is fairly well settled that the remedy of
appeal is creature of the Statute. Unless same is provided
either under Code of Criminal Procedure or by any other
law for the time being in force no appeal, seeking
enhancement of sentence at the instance of the victim, is
maintainable. Further we are of the view that the High
Court while referring to the judgment of this Court in the
case of National commission for Women v. State of Delhi6,
has rightly relied on the same and dismissed the appeal, as
not maintainable.”
(emphasis supplied )
7. Therefore, this Court cannot by interpretation of the word “trial”,
by interpretating it as, an appeal is a continuation of trial, enlarge the
scope of Section 374. Therefore, I am of the view that the objection raised
6 (2010) 12 SCC 599
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Crl.A.SR.No.27630 of 2022
by the office is in accordance with law and this criminal appeal is rejected,
however, with liberty to the appellant to file criminal revision at this stage.
8. However, learned counsel for the appellant submits that he will
take return of the papers and represent it as a revision. Therefore, the
office is directed to return the papers and learned counsel for the appellant
will be entitled to convert it into revision and represent it.
Index : yes/no 30.06.2022
Speaking order/Non-speaking order
drm
To
1. The Sub-Inspector of Police
Gingee Police Station
Villupuram District.
(Crime No.234 of 2015)
2. The Public Prosecutor, High Court of Madras.
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Crl.A.SR.No.27630 of 2022
D.BHARATHA CHAKRAVARTHY. J.,
drm
Crl.A.SR.No.27630 of 2022
30.06.2022
https://www.mhc.tn.gov.in/judis
