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2008 DIGILAW 478 (GAU)

Faizur Rahman v. State of Assam

2008-07-01

I.A.ANSARI

body2008
ORDER I.A. Ansari, J. 1. By the judgment and order, dated 04.06.2008, passed, in Sessions Case No. 140(S-S)20Q5, by the learned Additional Sessions Judge (FTC). Sivasagar, the petitioner stands convicted under Section304 (Part-II) IPC and sentenced to suffer rigorous imprisonment for seven years and pay fine of Rs.1,000/- and, in default of payment of fine, suffer simple imprisonment for a period of three months. Aggrived by his conviction and the sentence passed against him, the petitioner has put to challenge his conviction and the sentence passed against him by making this application under Section 482Cr.P.C. 2. Perused the above application and materials on record including the impugned judgment or order. 3. Heard Mr. A.B. Choudhury, learned Counsel for the petitioner, and Mr. Z. Kamar, learned Additional Public Prosecutor, Assam. 4. On the criminal petition being taken up for admission, it has been submitted by Mr. A.B. Choudhury, learned senior counsel, appearing on behalf of the accused-petitioner, that a person convicted by a Sessions Judge or an Additional Sessions Judge, has right of appeal against such a conviction under Section 374(2) Cr.P.C. irrespective of the period to which he may have been sentenced. Mr. Kamar, learned Public Prosecutor, Assam, agrees with the submissions, so made, on behalf of the accused-petitioner. 5. For the purpose of deciding the question as to whether an appeal would lie against conviction of a person by Sessions Judge or on Additional Sessions Judge if the sentence of imprisonment, passed against him, is for a term not exceeding seven years, it is necessary to take note of the provisions contained in Section 374 Cr.P.C. This Section reads 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 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. (2) Any person convicted on a trial held by 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 persons,- (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 Sessions. 6. From a careful examination of Section 374(2), what clearly emerges is that this subsection stands divided into two parts. While the first part relates to a person, who may have been convicted, on trial, by a Sessions Judge or an Additional Sessions Judge, the second part relates to the person, who on a trial held by any other court, stands convicted. If the order of conviction is by a Sessions Judge or an Additional Sessions Judge, the appeal would lie to the High Court irrespective of the term for which the convicted person may have been sentenced to; whereas, when a person is convicted by any Court, other than a Sessions Judge or an Additional Sessions Judge, and the sentence passed against him is for a term not exceeding seven years of imprisonment, the appeal would not lie to the High Court; rather, the appeal would lie, in such a case, in terms of Section 374(3), to the Court of Sessions. 7. Coupled with the above, it also needs to be noted that it is only when a Court of Session passes a sentence of imprisonment for a term not exceeding three months or fine not exceeding Rs.200/- or both that no appeal would lie at all and the remedy of a person, so convicted and sentenced, would lie in filing revision and not appeal. 8. Because of what have been discussed and pointed out above, I find considerable force in the submissions made on behalf of the accused-petitioner. 9. 8. Because of what have been discussed and pointed out above, I find considerable force in the submissions made on behalf of the accused-petitioner. 9. In view of the above, this criminal petition is directed to be treated as an appeal preferred by the accused-petitioner against the judgment and order, dated 04.06.2008, aforementioned, whereby he stands convicted and sentenced to imprisonment for a period of seven years with payment of fine as indicated hereinabove. Let this criminal petition be accordingly registered as criminal appeal, and the same be listed, for further order, on 16.07.2008.