IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3303 OF 2008() ------------------------------ CRA.780/2007 OF SESSIONS COURT, THIRUVANANTHAPURAM CC.215/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- HUSSAIN (KAPPAD), S/O SHAHUL HAMEED, PAZHAKUTTY JUNCTION, NEDUMANGAD. BY ADV. SRI.T.A.UNNIKRISHNAN SRI. K. SATHEESHKUMAR SRI. P.P. BIJU RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------------- 1. G.SIVANANDAN, AKHIL NIVAS, KATTAMBALLI, KARUPOOR MURI, KARUPOOR VILLAGE. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3303 OF 2008 ------------------------------------------ Dated this the 15th day of October, 2008 O R D E R Petitioner is the accused in C.C.215 of 1999 on the file of Judicial First Class Magistrate-I, Nedumangad, a complaint filed by first respondent alleging an offence under section 138 of Negotiable Instruments Act, and after trial, convicted and sentenced him for the offence under section 138 of Negotiable Instruments Act on 31.10.2000. Petitioner did not file an appeal challenging the conviction. First respondent filed Criminal Revision Petition 1066 of 2000 before this Court challenging the inadequacy of the sentence. This court as per order dated 19.3.2007 set aside the sentence and remitted the matter to the learned Magistrate to reconsider the sentence and to pass appropriate order holding that the sentence imposed was inadequate. Learned Magistrate thereafter heard the petitioner and first respondent and sentenced him to imprisonment till rising of the Court and a fine of Rs.1,000/- and in default simple imprisonment for three weeks and also a compensation of Rs.50,000/- under section 357(3) of Cr.P.C. Petitioner filed Crl. CRRP3303/08 2 Appeal 780/2007 before Sessions Court, Thiruvananthapuram. Learned Sessions Judge dismissed the appeal finding that petitioner is not entitled to challenge the conviction as he did not file an appeal against the conviction and remand was only for the purpose of awarding appropriate sentence. According to the learned Sessions Judge, an appeal against inadequacy of sentence is only as provided under section 377 of Code of Criminal Procedure and it can only be by the State and the appeal is not maintainable. Revision is filed challenging the order. 2. Learned counsel appearing for petitioner and the learned public prosecutor were heard. In the nature of the order to be passed in this revision petition, it is not necessary to issue notice to first respondent. 3. It is true that petitioner did not file an appeal challenging his conviction and sentence passed by the learned Magistrate on 31.10.2000. The case was remanded to the Magistrate by this Court in Crl.R.P.1066 of 2000 only for awarding an adequate sentence. In such circumstances, when learned Magistrate thereafter awarded an appropriate sentence, petitioner is not entitled to challenge the conviction by filing an CRRP3303/08 3 appeal against the said judgment. But it is different from stating that petitioner is not entitled to file an appeal at all. 4. Section 377 of Code of Criminal Procedure deals with an appeal by the State Government against a sentence. Under sub section (1) save as otherwise provided in sub section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. Sub section (2) deals with a case investigated by the Delhi Special Police Establishment constituted under Delhi Special Police Establishment Act,1946 or by any other agency empowered to make investigation or under any Central Act other than this Code in which the case an appeal as against inadequacy is to be filed on the direction of the Central Government. Sub section 3 of section 374 deals with an appeal by a person convicted on trial by a Magistrate or Assistant Sessions Judge. It reads: “Save as otherwise provided in sub-section (2), any person,-- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant CRRP3303/08 4 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.” Section 385 provides the procedure to be followed by the appellate Court hearing an appeal if not dismissed summarily. Sub section 2 of section 385 mandates that appellate Court shall send for the records of the case if such record is not already available in that Court and thereafter hear the parties. Proviso thereto makes it absolutely clear that an appeal is maintainable only against the extent or the legality of the sentence. It reads: “ Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record” Sub section 3 of section 385 makes that aspect further clear. It reads: “ Where the only ground for appeal from a CRRP3303/08 5 conviction is the alleged severity of the sentence, the appellant shall not, except with the leave of the Court, urge or be heard in support of any other ground.” Therefore the view taken by the learned Sessions Judge that an appeal will lie only against the conviction and not the sentence alone is not legally sustainable. In such circumstances the finding of the learned Sessions Judge that the criminal appeal is not maintainable, is illegal. 5. It is clear from the judgment of the learned Magistrate that the sentence is not legal. Apart from sentencing petitioner to imprisonment till rising of Court, a fine of Rs.1,000/- was awarded with a default sentence of simple imprisonment for three weeks. In spite of the fact that fine forms part of the sentence, learned Magistrate has also directed payment of compensation under section 357(3) of Code of Criminal Procedure. It is per se illegal as compensation under sub section 3 of section 357, could be awarded only if fine does not form part of the sentence. When fine forms part of the sentence, compensation could be awarded only under sub section 1 of section 357, which could only the fine or its part. CRRP3303/08 6 Revision is allowed. Judgment of the Sessions Judge is set aside. Crl. Appeal 780 of 2007 is remanded to Sessions Judge for disposal in accordance with law, after hearing the parties. M. SASIDHARAN NAMBIAR, JUDGE Okb/-