sat 1 cri.appeal 717-2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 717 OF 2005 Manish Paramhans Roy ...Appellant vs. The State of Maharashtra ...Respondent Mr.Murtuza M. Najmi for the Appellant. Mr.P.S. Hingorani, APP for the State. CORAM : M.L. TAHALIYANI, J. NOVEMBER 18, 2011 P.C. :- 1 This appeal impugns the judgment and order passed by the 4th Ad-hoc Assistant Sessions Judge Mr.R.S. Bhandurge, Sewree, Mumbai. The operative part of the judgment is being reproduced as under :- 1) The accused Manish Paramhans Roy is found guilty for having committed an offence u/s.328 of I.P.C. Hence, he is sentenced to suffer R.I. for 5 years and also to pay of Rs.1000/- in default to suffer S.I. for 6 months. 2) The accused Manish Roy is also found guilty for having committed an offence u/s. 365 of I.P.C. Hence, he is sentenced to suffer R.I. for one year and also to pay fine of Rs.500/- in default to suffer S.I. for 3 sat 2 cri.appeal 717-2005 months. 3) The accused Manish Roy is also found guilty for having committed an offence u/s.357 of I.P.C. Hence, he is sentenced to suffer R.I. for six months. 4) The accused Manish Roy is also found guilty for having committed an offence u/s.347 of I.P.C. Hence, he is sentenced to suffer R.I. for six months and also to pay fine of Rs.500/- in default to suffer S.I. for 3 months. 5) The accused Manish Roy is also found guilty for having committed an offence u/s.394 of I.P.C. Hence, he is sentenced to suffer R.I. for 5 years and also to pay fine of Rs.1000/- in default to suffer S.I. for 6 months. 6) All the substantive sentences of the above offences shall run concurrently. 7) The accused was in jail from 23/12/1998 till 10/05/2000 and he is in jail custody of this case from 17/02/2004 till today. Necessary set off be given to him u/s.428 Cr.P.C. 8) The property gold chain, gold ring and cash of Rs. 1000/- returned to the complainant on bond. His bonds stands cancelled after the period of appeal is over. The property articles A4, A5, A7 shirt, pant and larpose tablets respectively being worthless, be destroyed and wrist watch article No.A6 be sold in public auction and its sale proceeds be forfeited to Govt. after the period of appeal is over.” 2 When the appeal was taken up for hearing on the earlier occasion, the learned Advocate Mr.Murtuza Najmi was appointed as amicus curiae to assist the Court. After going through the record and proceedings, it was noticed sat 3 cri.appeal 717-2005 that, (1)Though the judgment has been delivered by Assistant Sessions Judge, it is stated in the appeal memo that the judgment had been delivered by Ad-hoc Sessions Judge. The word “Assistant” had not been used while drafting the appeal memo. Probably, therefore, the Registry has accepted this appeal. Designation of the Judge is clearly mentioned in the certified copy of the judgment, and that (2)the total period of substantive sentences comes to twelve years as the appellant has been convicted for more than one offence. However the highest sentence imposed is of five years. All the sentences have been directed to run concurrently. 3. Before I proceed further to examine the main issue involved in this appeal, it may be noted that appeals against convictions are governed by Section 374 of Cr.PC. which runs as under :- sat 4 cri.appeal 717-2005 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 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) 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. 4 The crucial question which arises for determination is as to whether the appeal from judgment sat 5 cri.appeal 717-2005 shall lie before High Court or the Sessions Court in a case where an Assistant Sessions Judge has imposed sentences of imprisonment for various offences and none of them is more than seven years but total of all the substantive sentences is more than seven years and all the sentences are directed to run concurrently. 5 In the present case, as can be seen from the operative part of the order, the highest substantive sentence imposed on the appellant is of five years. Though the total length of sentences is twelve years, all the sentences are directed to run concurrently. I had expressed the view that in such cases, the lesser sentences will merge with the highest sentence and highest sentence imposed by the Assistant Sessions Judge will be taken into consideration to decide the forum of appeal. 6 Learned Advocate Mr.Murtuza has taken lot of pains to assist the court and has ultimately subscribed the view expressed by this Court. 7 The view expressed by me and subscribed by sat 6 cri.appeal 717-2005 learned Advocate Mr.Murtuza also gets support from the judgment of this Court delivered by Justice Vishnu Sahai in the case of Heeralal Ramlal Parmar and etc. v. State of Maharashtra, reported at 1998 Criminal Law Journal 574. In the said case, the appellant was convicted for various offences. He was convicted of the offence punishable u/s. 148 of IPC and was sentenced to suffer three years RI and to pay a fine of Rs.2000/-, in default, to undergo six months RI. He was further convicted for the offence punishable u/s.307 read with 34 of IPC and was sentenced to suffer RI for 5 years and to pay a fine of Rs.3000/-, in default, to suffer RI for two years. Though the appellant was convicted for many other offences, no separate sentence was imposed for the said conviction. As such, the aggregate of substantive sentences was eight years. The Judge convicting the appellant was Assistant Sessions Judge. The highest sentence imposed by the Assistant Sessions Judge was of five years. It is obvious from the judgment delivered by Justice Vishnu Sahai in appeal that when more than one sentence has been imposed at one and same trial, the highest sentence has to be taken into consideration for the purpose of deciding the sat 7 cri.appeal 717-2005 forum of appeal. I reproduce the relevant portion of the said judgment which reads as under:- “9. At the very outset, I may mention that this appeal should not have been filed in this Court in view of the provisions contained in Section 374(2), Cr. P.C. which reads thus :- "(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on 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." A perusal of the said provision would make it crystal clear that where trial is held by a Judge other than a Sessions Judge or Additional Sessions Judge and a sentence of seven years or less is awarded, an appeal would not lie to the High Court. In the instant case, since the trial was held by the Assistant Sessions Judge, and a sentence of not more than seven years was awarded, my first reaction was to dismiss this appeal as not maintainable. But since it has been pending in this Court for nearly 7 years. On equitable considerations, I have refrained from doing so. It also struck me to send this appeal to the Sessions Court, with an observation that since for no fault of the appellants, it was filed in this Court, it should be treated within limitation and decided on merits. But, I desisted from doing so, because this would entail in the appellants, incurring extra expenditure, in having to engage a counsel in the said Court and would further delay the disposal of this appeal which is already pending since the last 7 years. sat 8 cri.appeal 717-2005 After all expeditious justice is an integral part of the fundamental right conferred by Article 21 of the Constitution of India which provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law." In situations such as the present, the ends of justice are better served if a humane view rather than one which is purely technical is taken. 10. But, I hasten to add that the equitable view which I have taken is on account of the peculiar facts of this case and the larger considerations of justice and I should not be understood to mean that if an conviction is recorded by an Assistant Sessions Judge and an appeal is preferred before this Court the sentence being not more than seven years, this Court would entertain the same. It would not, it should always be borne in mind that an appeal is a creature of the statute and would only lie before the Court, which is competent to hear it under the statute. “ (emphasis supplied) 8 In addition to this, if one goes through the provisions of Section 31(3) of Cr.P.C. it is abundantly clear that for the purpose of appeal against conviction, the aggregate of the consecutive sentences passed against the convict shall be deemed to be a single sentence. In other words, if the sentences are to run concurrently, the aggregate of all the sentences will not be deemed to be a single sentence for the purpose of appeal. To put it differently, it can be said that if the sentences are directed to run concurrently, all lesser sentences merge sat 9 cri.appeal 717-2005 with the highest sentence imposed during the one and the same trial. 9 In the present case, the highest sentence imposed by the learned Assistant Sessions Judge is of five years. All other sentences are lesser than the said sentence. Therefore, they merge with the sentence of five years. As such for deciding the forum of appeal, the sentence of five years will have to be taken into consideration. Since it is not more than seven years, the appeal will have to be heard by Sessions Court and not by High Court. The only thing which pains me to notice is that the appeal has come up for hearing when the appellant has undergone not only the substantive sentence but even in default sentence appears to have been completed by him. In any event, since the judgment is of conviction, it needs to be decided on merits irrespective of the fact whether the appellant has been released from the prison or not. It is possible that the appellant might not have been released from the prison as it appears that there were similar other cases also pending against him. But as stated earlier, even in the event of his release from the sat 10 cri.appeal 717-2005 prison, the matter needs to be decided on merits. Hence, I pass the following order :- a) The appeal memo and all relevant papers shall be sent to the Sessions Judge, Greater Mumbai. b) The Sessions Judge is directed to hear the appeal himself or assign the same to any other Additional Sessions Judge for deciding the same within a period of 30 days from the date of receipt of record and proceedings. c) It is made clear that no extension will be given for deciding the appeal. d) If the appellants presence is not secured for some or other reason, the Judge to whom the appeal is assigned shall appoint a lawyer from Free Legal Aid and sat 11 cri.appeal 717-2005 decide the appeal within the time prescribed by this Court. e) The compliance report shall be submitted by the Sessions Judge immediately after decision of the appeal. 10 Registry to take necessary steps for sending the record and proceedings to the Sessions Court with immediate effect. 11 Appeal be removed from the board of this Court. (M.L. TAHALIYANI, J)