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2009 DIGILAW 199 (AP)

Ajay Vanamali v. State

2009-03-24

GOPALA KRISHNA TAMADA

body2009
ORDER This Criminal Revision Case is directed against the judgment in Cri.A. No. 155 of 2008, whereby the learned Metropolitan Sessions Judge, Hyderabad, by his judgment dated 24-2-2009, while dismissing the said appeal, confirmed the sentence of imprisonment imposed by the learned IX Additional Chief Metropolitan Magistrate, Hyderabad in C.C.No. 1527 of2005 dated 06-06-2008. 2. When the matter is taken up for hearing, learned Counsel for the petitioner, Mr. O.Manohar Reddy, submitted that the learned Sessions Judge pronounced the judgment on 24-02-2009, but he has not given the copy of the said judgment to the appellant and hence he could not file copy of the said judgment and thus requested the Court to dispense with the filing of copy of the said judgment. 3. This Court is rather surprised to know as to how the appellate Court pronounced the said judgment without furnishing a copy of the judgment to the accused/appellant/petitioner. When once the judgment is pronounced, in my considered view, a duty is cast upon the Presiding Officer to furnish a copy of the said judgment to the accused so that the accused, can, if he so chooses, approach the appropriate Court for redressal. Further when once the appeal is dismissed, the Court, which heard the said appeal cannot suspend the sentence of imprisonment and the only option is to take the accused/appellant into custody. Here is a case where the petitioner was convicted and was immediately taken into custody thereafter, and then this revision is filed by moving a lunch motion. This Court is unable to know as to what is the finding arrived at in the judgment and the sentence imposed excepting the statement made by the learned Counsel for the petitioner. According to the learned Counsel for the petitioner, the petitioner was tried for an offence punishable under Section 332 of IPC and was convicted by the trial Court and was sentenced to undergo rigorous imprisonment for a period of one year and the same was confirmed by the appellate Court. However, these facts are not born on record for the reason that the copy of the said judgment is not before this Court. However, these facts are not born on record for the reason that the copy of the said judgment is not before this Court. Hence, this Court directed the Registry to call for a report from the learned Metropolitan Sessions Judge, Hyderabad, as to how and why he pronounced the judgment without furnishing a copy of the judgment and under which provision of law he did so. 4. Pursuant to the aforesaid order passed by this Court, on 25-2-2009, the learned Metropolitan Sessions Judge, Hyderabad, submitted a detailed report, which reads as under: "Criminal Appeal No. 155 of 2008 was filed by the accused against the judgment dated 06-06-2008 passed by the IX Additional Chief Metropolitan Magistrate, Hyderabad, in C.C.No. 1527 of 2005, by which the said lower Court convicted the accused for the offence under Section 332 IPC and sentenced him to rigorous imprisonment for one year and to pay fine of Rs. 3,000/-. After hearing the appellant's counsel and the Public Prosecutor, this Court (Metropolitan Sessions Judge Court, Hyderabad) pronounced judgment dated 24-02-2009 dismissing the appeal. The appellant's counsel filed copy application in CA. No. 3364 of2009 on 25~02-2009 for certified copy of the judgment in Criminal Appeal No. 155 of2008. Copyist Department of this Court called for stamps towards Xerox charges for Rs. 14/- on 27 -02-2009. Xerox charges/copying charges of Rs. 14/- were deposited by the appellant's counsel on 03-03-2009 and on the same day, certified copy of the judgment was made ready. The appellant's counsel must have obtained copy of the judgment either on the same day or some time thereafter as per his convenience. There is 0 provision of law or procedure or practice to furnish free copy of judgment in criminal appeals to any person including the appellant while pronouncing judgment in a criminal appeal. The relevant provisions are contained in subsection (1), sub-section (2) and subsection (5) of Section 363 of the Code of Criminal Procedure. Sub-Section (1) of Section 363 reads as follows: "When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost." This sub-section is applicable when 'the accused is sentenced to imprisonment'. It is only the trial Court, which sentences the accused to imprisonment. The appellate Court in an appeal against conviction will never again sentence the accused to imprisonment. It is only the trial Court, which sentences the accused to imprisonment. The appellate Court in an appeal against conviction will never again sentence the accused to imprisonment. The appellate Court simply confirms or set aside or alters penal section of law or alters period of imprisonment or fine amount. In Criminal Appeal No. 155 of2008, operative portion of judgment of this Court is to the following effect: "In the result, the appeal is dismissed." When the appeal against conviction and sentence was simply dismissed without imposing any further sentence of imprisonment, Section 363(1) Cr.P.C. has no application. Under sub-section (2) of 363 of Cr.P.C. judgment copy has to be given free of cost, "where the judgment is appealable by the accused". Judgment of this court in Criminal Appeal No. 155 of 2008 is not an appealable judgment. The accused has no right to file any further appeal before the Honourable High Court against the judgment passed by a Sessions Judge in Criminal Appeal against conviction and sentence. That is the reason why the accused filed Criminal• revision case under Section 397 Cr.P.C. against this Court's judgment in Criminal Appeal No. 155 of 2008. Therefore, no free copy of judgment need be given to the accused in a criminal appeal by the Sessions Court. As per sub-section (5) of Section 363 Cr.P.C. any person affected by a judgment or an order passed by a Criminal Court will be entitled for a copy thereof, only on payment of prescribed charges and on application made in that behalf. This provision is followed by this Court while pronouncing the judgment in Criminal Appeal No. 155 of 2008 and in granting certified copy of judgment in Criminal Appeal No. 155 of 2008 to the appellant's counsel on copy application No. 3364 of 2009 filed for the said purpose. This Court is furnishing judgment copies free of cost even in criminal appeals, in cases of appeals filed by the accused from Central Prison through Legal Aid Counsel. In no other case, this Court is furnishing free copy of judgment in criminal appeal having regard to the above provisions of Cr. P. C." 5. In the light of the aforesaid report explanation submitted by the learned Metropolitan Sessions Judge, Hyderabad, this Court looked into various provisions of law. Section 363 Cr.P.C. deals with copy of judgment to be given to the accused and other persons. P. C." 5. In the light of the aforesaid report explanation submitted by the learned Metropolitan Sessions Judge, Hyderabad, this Court looked into various provisions of law. Section 363 Cr.P.C. deals with copy of judgment to be given to the accused and other persons. According to the learned Judge, tile said provision of law applies to original Courts but not to the appellate Courts. But, however, this Court is of the view that the said interpretation is not correct in view of provisions of Section 387 Cr.P.C. Section 387 Cr.P.C. deals with judgments of subordinate appellate Court, which reads as under: “The rules contained in Chapter XXVII as to the judgment of Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate: Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered". 6. From the above provision of law, it is clear that the rules contained in Chapter XXVII particularly provisions of Section 363 Cr.P.C. squarely applies to subordinate Appellate Courts also. Further Rule 72 of Criminal Rules of Practice deals with copies to be furnished to the prosecution and the accused. The very purpose of the said provision of law is to avoid further delay and further as the accused is convicted he shall be given an allowance i.e., furnishing copies of judgments free of cost. Rule 72 of Criminal Rules of Practice reads as under: Copies to the prosecution and the accused:- copies of judgments shall be given to the accused and the prosecution. When a person who has been convicted of an offence, applies for another copy of judgment in addition to the one required to be furnished to him u/s. 363 of the Code, with a view to memoralising Government, he shall be furnished with another copy in all cases free of cost except in summons cases. 7. The wording used in the above provision of law i.e. Rule 72 of the Criminal Rules of Practice is to the effect that the second copy of the judgment also shall be furnished free of cost, which means the first copy of the judgment also shall be furnished free of cost. 8. 7. The wording used in the above provision of law i.e. Rule 72 of the Criminal Rules of Practice is to the effect that the second copy of the judgment also shall be furnished free of cost, which means the first copy of the judgment also shall be furnished free of cost. 8. Here is a case where the judgment was pronounced on 24-2-2009 and no copy of judgment was given to the accused. Further according to learned Metropolitan Sessions judge, copy application was made on 25-2-2008 for certified copy of the judgment copyist department called for stamps towards Xerox charges on 27 -02-2009 and the certified copy of the judgment was made ready on 03-03-2009 after depositing the charges. Had this Court not dispensed with the copy of the judgment of the lower appellate Court and insisted upon the advocate to file copy of the judgment, the accused/appellant/petitioner would have to be in jail till3rdor4th March, 2009 for the reason that the appellate Court has no power to suspend the sentence of imprisonment. 9. The learned Metropolitan Sessions Judge in his report has stated that there is no provision of law, procedure or practice to furnish free copy of judgment in criminal appeals to any person including the appellant while pronouncing judgment in a criminal appeal. But in the light of provisions of Section 387 Cr.P.C. read with Rule 72 of the Criminal Rules of Practice, it is clear that even in criminal appeals the accused are entitled to free copies of judgments. Hence, this Court is of the view that the practice that has been adopted by the learned Metropolitan Sessions. Judge is totally contrary to law. Further the High Court issued various circulars to the Presiding Officers all over the State vide Circular Nos. (1)ROC No.1059/S0/82-2dated 30-06-1982, (2) ROC No. 4456/2003/0P .CELLE, dated 11-09-2003 and (3) ROC No. 2963/ OP .CELL -E/2004 dated 15-07 -2004directing them to issue copies of judgments on the day when the judgment is pronounced. In all these circulars, this Court specifically mentioned the words "Accused/Appellants" to whom the copies should be given free of cost. Even as per the said circulars of this Court also, the practice that has been adopted by the learned Metropolitan Sessions Judge is not correct. 10. In all these circulars, this Court specifically mentioned the words "Accused/Appellants" to whom the copies should be given free of cost. Even as per the said circulars of this Court also, the practice that has been adopted by the learned Metropolitan Sessions Judge is not correct. 10. From the above, what emerges is that whether it is by the trial Court or by the appellate Court, when once the accused person is convicted, he is entitled to have a free copy of the judgment and further the certified copy of the judgment shall be furnished at the earliest. When the judgment is pronounced in the presence of the accused person, either by the trial Court or by the appellate Court, and when once he is directed to be taken into custody by the police, the Court shall invariably furnish a copy of the judgment free of cost then and there itself enabling him to approach the appellate or revisional court for appropriate relief.