Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 804 (GAU)

Bijoy Jamatia v. State of Tripura

2006-08-29

R.B.MISRA

body2006
JUDGMENT R.B. Misra, J. 1. Heard Mr. S. Kar Bhowmik, learned Counsel for the Appellant. Also heard Mr. D. Sarkar, learned Public Prosecutor assisted by Mr. R. Debnath, learned Special Public Prosecutor for the Respondent. 2. The present appeal under Section 374(2) of Code of Criminal Procedure has been preferred against the judgment dated 16.11.1995 passed by the learned Chief Judicial Magistrate, South Tripura, Udaipur in Case No. G.R. 199 of 1993 convicting the Appellant under Section 392 of I.P.C. sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year. 3. The appeal was initially admitted on 15.02.1999 and the lower Court records were called for. This Court while entertaining bail application of applicant in Criminal Appeal granted the bail application on 24.11.2000. It appears that while admitting this criminal appeal certain necessary aspects were missed from the esteemed notice of this Court more specifically the admissibility of appeal against the order of conviction of 7 years passed by the Chief Judicial Magistrate, South Tripura, Udaipur for the offence under Section 392 of I.P.C. 4. The relevant provisions of Code of Criminal Procedure are quoted for convenience: 29. Sentences which Magistrates may pass: (1) The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the power of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. 31. Sentence in cases of conviction of several offences at one trial.: (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section71 of the Indian Penal Code. 31. Sentence in cases of conviction of several offences at one trial.: (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section71 of the Indian Penal Code. (45 of 1860) sentence him for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court. Provided that- (a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence. 374. Appeal 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 Section360 by any Magistrate, may appeal to the Court of Sessions. 401. 401. High Court's powers of revision.- (1) * * * (2) * * * (3) * * * (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 5. Section 29 of Code of Criminal Procedure deals with sentences which Magistrates may pass. It provides that Chief Judicial Magistrate may pass any sentence except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. According to Section 31in cases of conviction of several offences at one trial may have to suffer one after the expiration of the other as directed by the Court, unless the Court directs that such punishment shall run concurrently. Section 374(2) provides that 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. 6. The said appeal cannot be converted as a revision petition under Section 401 of Code of Criminal Procedure by this Court as Section 401(4) provides that when under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. 6. The said appeal cannot be converted as a revision petition under Section 401 of Code of Criminal Procedure by this Court as Section 401(4) provides that when under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. According to Section 401(5) when under any of the provisions of Code of Criminal Procedure, an appeal lies but an application for revision has been made to the High Court by any person or by the accused and the High Court is satisfied that such application or petition was made under the erroneous belief by such person/applicant/accused that no appeal lies thereto then in the interest of justice or the ends of justice has to be protected and for that purpose the High Court at its satisfaction and pleasure may treat such application of applicant/any person/accused of revision as a petition of appeal. However, this is not applicable vice versa meaning thereby if revision is to be preferred against any order and under bona fide belief any person/applicant/accused has preferred appeal then to meet the ends of justice High Court may not treat such appeal to be treated as revision. 7. In the present case, sentence of seven years was awarded by order dated 16.11.1995 the learned Chief Judicial Magistrate; South Tripura, Udaipur with a penalty of fine of Rs. 10,000/- and in default of payment of fine to suffer further rigorous imprisonment for one year. According to the learned Public Prosecutor, the sentence awarded in the impugned order dated 16.11.1995 by the learned Chief Judicial Magistrate, South Tripura, Udaipur was seven years only therefore the remedy is open to approach before Sessions Court. 8. In these circumstances, the appeal under Section 374(2) Code of Criminal Procedure cannot be entertained against the impugned order dated 16.11.1995 passed by the learned Chief Judicial Magistrate, South Tripura, Udaipur in Case No. G.R. 199 of 1993. 9. In view of the above observations without commenting upon the merits of the case the present criminal appeal be sent to the learned Sessions Judge, South Tripura, Udaipur who may entertain the appeal for disposal. Original lower Court records be also sent to him. 10. With the above observations and directions, this criminal appeal stands disposed of.