sat 1 Cri.appeal 458-2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 458 OF 2006 Sopan Deoram Kale ...Appellant vs. State of Maharashtra&Anr. ...Respondents None for the appellant. Ms.Alpa Javeri, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : NOVEMBER 18, 2011 P.C. :- 1 This appeal impugns the judgment and order passed by the 13th Ad-hoc Assistant Sessions Judge, Pune, on 14th November, 2005 in Sessions trial No. 437/2004. The appellant Sopan Kale, who was original accused no.2, and original accused no.1 Genubhau @ Santosh Dagdu Undre have been convicted for various sat 2 Cri.appeal 458-2006 offences by the learned Assistant Sessions Judge. Separate sentences have been imposed for the offences for which they have been convicted. However, the sentences are directed to run concurrently. The operative part of the Order of the learned Assistant Sessions Judge reads as under :- (1)Accused No.(1) Genubhau alias Santosh Dagade Undre and accused No.(2) Sopan Deoram Kale are hereby convicted u/s. 235 Cr.P.C. of the offence punishable u/s.363 r.w.34 of Indian Penal Code and sentenced to suffer R.I. for 2 years each and also to pay a fine of Rs.3000/- each in default to suffer R.I. for Six Months each. (2)Accused No.(1) Genubhau alias Santosh Dagadu Undre is hereby acquitted u/s. 235 Cr.P.C. of the offnce punishable u/s.366 of Indian Penal Code. (3)The accused No.2 Sopan Deoram Kale is also convicted u/s.235 Cr.P.C. of the offence punishable u/s.366 of Indian Penal Code and sentenced to suffer R.I. for 5 years and also to pay a fine of Rs.3,000/- in default to sat 3 Cri.appeal 458-2006 suffer R.I. for six months. (4)Accused No.2 Sopan Deoram Kale is also convicted u/s.235 Cr.P.C. of the offence punishable u/s.376 of Indian Penal Code and sentenced to suffer R.I. for 7 years and also to pay a fine of Rs.3,000/- in default to suffer R.I. for six months. (5)Substantive sentences of accused No. (2) Sopan Deoram Kale mentioned Supra shall run concurrently. (6)Accused No.(1) Santosh Dagadu Undre shall surrender his bail. (7)Accused No.1 Genubhau alias Santosh Dagadu Undre was in jail from 20-8-2004 to 30-10-2004. The accused No.2 Sopan Deoram Kale is in jail from 11-3-2005. Set off for the said period be given to both the accused u/s.428 of Cr.P.C. (8)Out of the fine amount Rs.10,000/- if realized from both the accused be given to the mother of the victim namely Sou.Kausalya Prabhakar Gade, Resident of Manjari Budruk Haveli District Pune as a compensation u/s. 357(1) Cr.P.C. after the appeal period is over. (9)Muddemal property vehicle bearing Registration No.MH-12 BG 1391 already handed over to its registered owner by the police, he be retained the same. sat 4 Cri.appeal 458-2006 2 The highest sentence imposed by the learned Assistant Sessions Judge is of seven years. There is no sentence of imprisonment for more than seven years. The question which needs consideration is whether in such a case, the appeal before the High Court is maintainable or the same should have been filed before the Sessions Court. The appeals from convictions are governed by provisions of Section 374 of Cr.P.C. Section 374 of Cr.P.C. runs as under :- 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 sat 5 Cri.appeal 458-2006 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. 3 It is clear from the provisions of sub-section 2 of Section 374 of Cr.P.C. that the appeal against the judgment and order of Assistant Sessions Judge will lie before the High Court in case a sentence of imprisonment of more than seven years is imposed. In the present case, the highest sentence imposed by the learned sat 6 Cri.appeal 458-2006 trial Judge is seven years for the offence punishable u/s.376 of IPC. All other sentences are lesser than the sentence of seven years. All the sentences are directed to run concurrently. Therefore, the lesser sentences obviously would merge with the highest sentence. The highest sentence will decide the forum before which the appeal should lie. 4 Section 31(3) of Cr.P.C. states that in a case of consecutive sentences, the aggregate of all the sentences shall be taken into consideration for the purposes of deciding the forum of appeal. In other words, the said sub-section says that if the sentences are directed to run concurrently, all lesser sentences shall merge with the highest sentence imposed by one and the same trial. sat 7 Cri.appeal 458-2006 5 In view of the provisions of Section 374(2) and Section 31(3) of Cr.P.C. and in view of the judgments of this Court in the matter of Heeralal Ramlal Parmar and etc. v. State of Maharashtra reported at 1988 Criminal Law Journal 574 delivered by Justice Vishnu Sahai, and in the matter of Manish Paramhans Roy (Criminal Appeal No. 717/2005) decided by me, I am of the view that this appeal must have been presented before the Sessions Court, Pune. The relevant portion of the judgment in Heeralal Parmar s case 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 sat 8 Cri.appeal 458-2006 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. 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 sat 9 Cri.appeal 458-2006 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. “ 6 It is thus clear that the record and proceedings will have to be sent to the Sessions Court, Pune, with direction to decide the appeal, expeditiously. I, therefore, pass the following order :- (a) Appeal memo and the record and proceedings shall be sent to the Sessions Judge, Pune. (b) The Sessions Judge himself shall hear the appeal or he may direct any of the Additional Sessions Judges working under him to decide sat 10 Cri.appeal 458-2006 the same. (c) The appeal shall be decided within a period of thirty days from the receipt of record and proceedings from this Court by the Sessions Court. (d) It is made clear that no extension will be given on any grounds. 7 Registry to take necessary steps immediately. 8 The appeal be removed from the board of this Court. (M.L. TAHALIYANI, J.) sat 11 Cri.appeal 458-2006