KRUSHNA CHANDRA BARIK v. STATE OF ORISSA — 1994 DIGILAW 222 (ORI)

JUDGMENT : A. Pasayat, J. - Can an order of conviction not followed by a sentence, passed by a Magistrate be assailed in appeal is the single but important question raised in this application. 2. A detailed reference to the factual position is unnecessary as the controversy revolves round the aforesaid question which is one of law. Facts necessary for disposal of the matter in a nutshell are that the learned Judicial Magistrate. First Class, Jagatsinghpur found the petitioner guilty of an offence punishable u/s 326 of the Indian Penal Code, 1860 (in short, 'IPC'), and convicted him thereunder. He was, however, acquitted of the offence punishable u/s 324 read with Section 34, IPC. His co-accused was acquitted in respect of offences punishable Under Sections 326, 324 read with Section 34, IPC. Unfortunately no finding regarding the sentence was recorded, and it has only been stated that the petitioner was not entitled to get benefit under the Probation of Offenders Act, 1958. An appeal was preferred before the learned Sessions Judge, Cuttack. who held that the stage to file an appeal had not come. A direction was, however given to the petitioner to appear before the trial Court on 20th June, 1994 so that appropriate orders regarding sentence can be passed. 3. The stand of the petitioner in this application is that conclusions of learned Sessions Judge are erroneous. Since the petitioner had prayed for representation on 26-4-1994, i. e, on the date the matter was posted for judgment, there was no legal infirmity in the pronouncement of judgment and in any event without a sentence the appeal is maintainable, it is pleaded. 4. The learned counsel for State on the other hand supported the view expressed by the learned Sessions Judge and submitted that without award of a sentence the proceeding before the concerned Court does not pome to an end, end only a combined order of conviction and sentence can be assailed in the higher forum. 5. 'Sentence' may bear the wider meaning of judgment or decision or the narrower sense of pronouncement of punishment according to the context, but the primary meaning is "punishment imposed". Sentences which can be awarded by various Courts are indicated in Sections 28 and 29 of the Code of Criminal Procedure. 19/3 (in short, the 'Code'). 5. 'Sentence' may bear the wider meaning of judgment or decision or the narrower sense of pronouncement of punishment according to the context, but the primary meaning is "punishment imposed". Sentences which can be awarded by various Courts are indicated in Sections 28 and 29 of the Code of Criminal Procedure. 19/3 (in short, the 'Code'). The Code first enumerates the Courts by which different offences can be tried, and then proceeds to define the limits of sentences which they can pass. These limits show the maximum sentences which a Court can pass; they have nothing to do with the maximum penalty provided for an offence. The question of sentence is always a difficult and complex question. Sentencing is always a matter of judicial discretion subject to any mandatory minimum pres- described by law. Where a fine is imposed on an accused, and it is not paid, Section 30 of the Code provides that he can be imprisoned for a further term in addition to the sub stantivo imprisonment awarded, if any. There is a limit to the power of Magistrates to award fines in terms of Section 29; but the powers of a Sessions Court or the High Court are unlimited. Section 63, (PC provides that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. Section 31 of the Code deals with sentence in cases of conviction of several offence at one trial. Section 354 of the Code provides that every judgment referred to in Section 353 shall inter alia specify the offence, if any, of which, and the section of the IPC or other law under which, the accused is convicted and the punishment to which he is sentenced. Sub-section (2) of Section 354 provides that when the conviction is under the IPC and it is doubtful under which of two sections, or under which of two parts of the same section, and under which Chapter of the IPC the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. The sentence in the case of a conviction is a part of the judgment. If the judgment is one of acquittal it shall state the offence of which the accused is acquitted. The sentence in the case of a conviction is a part of the judgment. If the judgment is one of acquittal it shall state the offence of which the accused is acquitted. The judgment shall contain; (i) the points for determination; (ii) the decision thereon; and (iii) reason for the decision. Section 354(1)(c) clearly requires that the Court should apply its mind to the offence or offences committed by each of tie accused and record its finding thereon, and further that it should specify the punishment which it proposes to impose upon the accused. 6. The word 'convicted 'or' conviction' of a person accused. is equivocal. 'In common parlance no doubt it is taken to mean the verdict at the time of trial; but in strict legal sense it is used to denote the judgment of the Court' per TrIndal C. J. Burgess v. Boetofeur 13 LJMC 126. A conviction is complete as soon as the person charged has been found, or has pleaded, guilty, though it seems that the Court has a locus paenitentise before the conviction is actually drawn up (See R v. Manchester Justices ; (1937) 2 K. B. 6. To convict means to declare guilty after trial. In other words conviction is determination of guilt of a person accused of having committed an offence under the IPC or any other law. In cases of conviction, a Magistrate has to pass a sentence according to law unless he takes recourse to Section 360 or other analogous provision A sentence follows and does not precede a conviction. 7. Depending upon the quantum of sentence, higher forum of challenge is determined. Section 372 of the Code provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. Right of appeal is a creation of statute. There can be no inherent right of appeal from any judgment of determination unless an appeal is expressly provided for by the taw itself (See Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others. Appeals in respect of various judgments or orders are provided in Sections 373, 374, 377 and 378 of the Code. Section 374 deals with appeals from convictions by persons convicted on trial. Section 375 provides that there shall be no appeal in certain cases when accused pleads guilty. Thakur Raghuraj Singh and Others. Appeals in respect of various judgments or orders are provided in Sections 373, 374, 377 and 378 of the Code. Section 374 deals with appeals from convictions by persons convicted on trial. Section 375 provides that there shall be no appeal in certain cases when accused pleads guilty. In petty cases appeal cannot be filed in terms of Section 376, and what are petty cases have been indicated in the section itself. . Section 377 deals with appeals by the State Government against sentence and Section 378 deals with appeals in cases of acquittal. Section 379 deals with appeals against conviction by High Court in certain cases. Section 380 provides special right of appeal in certain cases. Procedure for hearing appeals not dismissed summarily is provided in Section 385 and Section 386 deals with powers of the appellate Court. 8. The controversy at hand is relatable to Clause (b) of Section 386. It reads as follows : "386. Powers of the appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal u/s 377, or Section 378, the accused, if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-: (a) xx xx xx (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit Or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;" In an appeal from a conviction appellate Court can reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or alter the finding maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. 9. 9. Where appeal is not provided the forum available to the aggrieved person is a revision in terms of Section 397 read with Section 401 of the Code. As indicated above, sentence plays vital role for determination of the forum of challenge. It is to be noted that as set- out in Section 376, notwithstanding anything contained in Section 374 re-appeal is provided in respect of petty cases. Section 374 simplifies and incorporated at one place the entire law relating to the right of and forum for, an appeal in case of conviction by a Court of original jurisdiction. Except to the extent provided in Sections 375 and 376, an appeal will lie against all convictions and sentences passed by Courts of original jurisdiction. 10. Under Clause (b)(ii) of Section 386, the appellate Court is empowered to alter the finding, maintaining the sentence. Thus, if the appellate Court alters the finding, it cannot maintain the conviction, though it can maintain the sentence. 'Alter' means change in form, without changing the underlying character of the thing to be changed. 'Alteration' while maintaining the essential character of the finding, envisages only a change in form, that is, in the case of a conviction in the degree of guilt. Sub-section (3) of Section 374 of the Code is high- lighted by the learned counsel for the petitioner to ad-nit that it provides the forum of appeal in respect of conviction on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or any Magistrate of the First Class or of the Second Class. There can be no dispute over the said proposition. But when the said provision is read conjointly with Section 374, it is clear that in certain cases notwithstanding anything contained in Section 376 an appeal shall not tie where amongst others a Magistrate of the First Class passes only a sentence of fine not exceeding one hundred rupees; or where in a case tried summarily. a Magistrate empowered to act under Sec 250 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, subject to the situations enumerated in the proviso. a Magistrate empowered to act under Sec 250 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, subject to the situations enumerated in the proviso. Therefore, even though the forum of appeal in respect of a conviction on a trial held by a Magistrate of the First Class, is the Court of Session, yet sentence is the determinative of the question whether there can be an appeal or nor. 11. Section 376 is intended to restrict the right of appeal by the exclusion of petty cases. It takes away the right of appeal not only in those cases which are referred to in the earlier part of See. 374, but also in cases u/s 325 or u/s 360. What has to be seen in considering whether a case is hit by Section 376 is whether the sentence in question was one not exceeding the limit prescribed, and whether it was a sentence passed by a Court of the class mentioned therein. If these conditions are satisfied Section 376 would apply whether the sentence was passed u/s 325 or Section 360 or otherwise. If these conditions are satisfied. Section 376 would apply. It is an exception to the general rule laid down in Section 374. 12. As the learned JMFC has not passed any sentence, the learned Sessions Judge was justified in holding that presentation of appeal was premature. He has rightly directed the accused to appear before the learned Magistrate so that an order on the question of sentence can be passed by the Magistrate. The date fixed by the learned Sessions Judge is over. Therefore, while declining to entertain the application, direct that the accused petitioner shall appear before the learned Magistrate on 24th August, 1994, when the learned Magistrate shall pass orders on the question of sentence. The appeal before the learned Sessions Judge shall be taken up on 2nd State-nber. 1994. so that he can pass appropriate orders on the basis of order to be passed by the learned Magistrate on the question of sentence. The appeal before the learned Sessions Judge shall be taken up on 2nd State-nber. 1994. so that he can pass appropriate orders on the basis of order to be passed by the learned Magistrate on the question of sentence. The Court in all cases is obligated to State in a specific clew manner in the operative portion of the judgment with regard to conviction and sentence against an accused, and in doing so some amount of care is necessary to see that no mistake creeps into in this regard. Learned should be more careful in future so that controversy of the nature raised can be avoided. The revision application is accordingly disposed of.