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2014 DIGILAW 4294 (MAD)

S. Diwakar v. T. Arunachalam

2014-11-17

S.TAMILVANAN, T.MATHIVANAN

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JUDGMENT : S. TAMILVANAN, J. The unnumbered Criminal Appeal in Cri. A. Sr. No. 51810 of 2014 has been preferred by the appellant against the order passed in unnumbered Cri. R. C. Sr. No. 15119 of 2014 on the file of this Court. The unnumbered Criminal Appeal came up before this Bench to decide the maintainability, since the same is preferred against an order passed by a learned single Judge of this Court in an unnumbered Criminal Revision. 2. The petitioner, who is party-in-person appeared before this Bench and argued that though the unnumbered appeal is preferred by him under Article 117 of Limitation Act and Section 372 of the Code of Criminal Procedure against the order, dated 7-10-2014 passed by learned single Judge of this Court, in the unnumbered criminal revision in M.P. No.1 of 2014 in Cri. R. C. Sr. No. 15119 of 2014, according to him, the same is maintainable. 3. It is an admitted fact that the appellant herein was the counsel for the respondent in the case in C.C. No.4492 of 2013 on the file of the XIV Metropolitan Magistrate Court, Egmore, Chennai, wherein summons were issued to the accused persons and on 17-12-2013, P.W.1/complainant was examined and Exs. P.1 to P.21 were marked and for cross- examination of P.W. 1, the case was adjourned to 3-1-2014. A copy of the order, dated 7-10-2014, reveals that the aforesaid case was adjourned to 3-1-2014 by the learned Metropolitan Magistrate. It is seen that the adjudication dated 17-12-2013 was challenged by the respondent herein through his counsel, the appellant herein, as he was his advocate by filing Cri. R. C. No. 1 of 2014 on the file of the learned II Additional City Civil-cum-Sessions Judge, Chennai. During the pendency of the revision, the appellant herein, who was the counsel for the respondent advised the respondent herein to file Tr. O.P. to transfer the revision to some other Court. 4. As counsel for the respondent, the appellant also gave a letter to the Registrar General of this Court to transfer Cr. R. C. No.1 of 2014 from the file of the learned II Additional City Civil-cum-Sessions Court, Chennai, administratively, though transfer of the part-heard case is normally not possible. 5. It seems that the respondent herein, who was the revision petitioner in Cri. R. C. No.1 of 2014 from the file of the learned II Additional City Civil-cum-Sessions Court, Chennai, administratively, though transfer of the part-heard case is normally not possible. 5. It seems that the respondent herein, who was the revision petitioner in Cri. R.C. No. 1 of 2014 on the file of the II Additional City Civil-cum-Sessions Court, Chennai had not accepted the advice of the appellant and instead of that, he asked the appellant to give his consent for engaging some other Advocate as his counsel. The appellant herein as counsel for the respondent herein did not give his consent for the respondent to engage another counsel and therefore, the respondent had filed a petition before the learned II Additional City Civil-cum-Sessions Judge, Chennai, seeking an order to revoke the vakalath filed by the petitioner/appellant herein as his counsel and to accept change of vakalath. The appellant herein being the respondent therein filed counter-affidavit. After hearing both sides, the learned II Additional City Civil-cum-Sessions Judge, Chennai, allowed the petition filed by the respondent, revoking the vakalath, whereby permitted the respondent herein to engage any other Advocate, according to his choice, that was challenged by the appellant herein in the unnumbered Criminal Revision in Cri. R.C. Sr. No. 15119 of 2014 and by order, dated 7-10-2014, the said unnumbered Criminal Revision was also dismissed on merits and the interim order already granted in the miscellaneous petition was also vacated. Aggrieved by which, this unnumbered Criminal Appeal has been preferred under Article 117 of Limitation Act and Section 372 of the Code of Criminal Procedure by the petitioner/appellant, party-in-person. 6. The matter came up before this Bench for deciding the maintainability of the unnumbered appeal, in view of the query raised by the Registry, in order to decide the maintainability of the unnumbered criminal appeal preferred against the order passed in an unnumbered Criminal Revision petition. The appellant herein, as party-in-person submitted that the appeal is maintainable, in view of the provisions under Article 117 of the Limitation Act and Section 372 of the Code of Criminal Procedure. In support of his contention, he produced a Division Bench decision of the Calcutta High Court, in State v. Prakash Ch. De and another, reported in 1977 Cri LJ 863. 7. In support of his contention, he produced a Division Bench decision of the Calcutta High Court, in State v. Prakash Ch. De and another, reported in 1977 Cri LJ 863. 7. At this juncture, it is relevant to refer Article 117 of the Limitation Act, which reads as follows : Description Period of Time from of appeal Limitation which period begins to run 117 From a decree Thirty days The date of the or order of any decree or order. High Court to the same court. 8. Having considered the arguments of the appellant/party-in-person, we are of the view that it is well settled that a criminal appeal cannot be preferred independently under Article 117 of the Limitation Act. In case any appeal is preferred under the relevant provision of the Code of Criminal Procedure and if there is delay, to be saved, as per Article 117 of the Limitation Act, in such a circumstance, appeal could be preferred, citing the relevant provision relating to the Code of Criminal Procedure read with Article 117 of Limitation Act. However, independently no criminal appeal could be filed under Article 117 of Limitation Act. 9. Here in this case, the unnumbered appeal has been preferred independently under Article 117 of Limitation Act and also Section 372 of the Code of Criminal Procedure. As contemplated under Section 372 of the Code of Criminal Procedure, which reads 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. The Code of Criminal Procedure makes it clear that an aggrieved party is entitled to prefer an appeal against the judgment, either against conviction by the accused or acquittal by the complainant or de facto-complainant and similarly, an appeal shall lie to the Court to which an appeal originally lies against the order of conviction of such Court. However no appeal shall be maintainable, as contemplated under Section 372 of the Code. As per the proviso to the said section, it has been made clear that an appeal could be preferred only against conviction or acquittal by an aggrieved party to the case. However no appeal shall be maintainable, as contemplated under Section 372 of the Code. As per the proviso to the said section, it has been made clear that an appeal could be preferred only against conviction or acquittal by an aggrieved party to the case. In the instant case, the appellant, party-in-person in the unnumbered criminal appeal, is neither a convicted accused nor a de facto-complainant to prefer any appeal against the conviction or acquittal, as the case may be, even for invoking the relevant appeal provision of the Code of Criminal Procedure. 10. It is also relevant to state that Section 374, Cr. P.C. deals with appeals from conviction and as per Section 375 of the Code, no appeal in certain cases would be maintainable, when the accused pleads guilty. Similarly, as per Section 376 of the Code, notwithstanding anything contained under Section 374, there shall be no appeal by a convicted person in any of the cases referred to by him under Section 376 of the Code, as per clause (a), where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine, appeal will not lie. As per clause (b) of the said section, where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two thousand rupees, or of both such imprisonment and fine and as per clause (c), where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred rupees and as per clause (d), where the case has been tried summarily, a Magistrate empowered to act under section 260 passes only a sentence of fine not exceeding two hundred rupees, no appeal, shall lie, subject to any other special provision(s) of law. 11. It is well settled that Section 377 of the Code deals with appeals being preferred by the State Government and Section 378 deals with appeal in case of acquittal. Similarly, sections 379 to 381 of the Code dealing with appeal against conviction by the High Court in certain cases, special right of appeal in certain cases, appeal to Court of Session respectively. Similarly, sections 379 to 381 of the Code dealing with appeal against conviction by the High Court in certain cases, special right of appeal in certain cases, appeal to Court of Session respectively. However, it is clear that no appeal could be preferred under Section 372 of the Code of Criminal Procedure and further, a counsel to a party in a criminal case is not entitled to prefer appeal against an order of revocation or appeal against order passed in an unnumbered Criminal Revision. 12. A perusal of all the relevant provisions relating to appeal, as per the Code of Criminal Procedure, it is crystal clear that only against conviction or acquittal, either on behalf of the convicted accused or by the prosecution or by any de facto-complainant, appeal could be preferred. In the instant case, it is seen that strangely the accused before the Court below filed a petition, seeking an order to revoke his vakalath, since his counsel, the appellant herein was not accepting the respondent herein to engage some other counsel and it reveals as per the impugned order and the material papers that the appellant, being his counsel had refused to hand over the case bundle to the respondent, herein, so as to enable him to engage some other advocate and proceed with the case further. 13. As held by the learned single Judge, Hon’ble Mr. Justice R. S. Ramanathan, it is the prerogative and fundamental right of any party to engage a counsel, according to his choice. Hence, the appellant being his earlier counsel cannot insist that he would be his counsel and the party cannot engage any other counsel, according to his choice. The petitioner could ask only for settlement of his fees, however, that is a different issue. As the appellant is neither a convicted accused nor the complainant or de facto-complainant, hence, as per the Code of Criminal Procedure, he cannot prefer any appeal, as there is no appeal provision, for the counsel, who is the petitioner/ appellant herein to prefer criminal appeal against the order passed in an unnumbered criminal revision. 14. Learned single Judge, dismissed the unnumbered criminal revision in Cri. R.C. Sr. No. 15119 of 2014 on merits. It is well settled that as against the order passed in an unnumbered revision, no one can prefer criminal appeal. 14. Learned single Judge, dismissed the unnumbered criminal revision in Cri. R.C. Sr. No. 15119 of 2014 on merits. It is well settled that as against the order passed in an unnumbered revision, no one can prefer criminal appeal. The appellant, party-in-person, who was the counsel for the respondent before the trial Court, cited the decision in State v. Prakash Ch. De and another, reported in 1977 Cri LJ 863 in support of his contention. 15. Having gone through the decision, we are of the considered view that the aforesaid decision is not applicable to the facts and circumstances of the case. Even in the decision, a Division Bench of the Calcutta High Court has held that Article 117 of Limitation Act, does not apply to an appeal against acquittal in a Sessions case or in the original side of the High Court, Criminal Appeal cannot be preferred independently any provision of the Limitation Act, without referring the correct appeal provision of the code, though a plea could be raised with regard to period of limitation involved. The Division Bench has not held that criminal appeal could be filed independently under Article 117 of the Limitation Act, as per the decision cited by the party-in-person and therefore, there is no relevancy in citing the aforesaid decision, to convince the Court to show that the unnumbered appeal preferred by the appellant/party-in-person is maintainable. 16. Similarly, Section 372 of the Code of Criminal Procedure, specifically stipulates that no appeal shall lie unless otherwise provided against the Judgment and Order of the Criminal Court, except as provided under the Code. Hence, under the said provision, the appellant/party-in-person is not entitled to prefer appeal against the order passed in the unnumbered criminal revision, as the same is unknown to the Code of Criminal Procedure. Hence, it is crystal clear that against an order passed in an unnumbered criminal revision, no criminal appeal shall lie before this Bench. 17. On the aforesaid facts and circumstances, we are of the considered view that the unnumbered criminal appeal preferred by the appellant/party-in-person is not legally maintainable and it has been made clear by the Hon’ble Supreme Court that the precious time of the Court should not be consumed by any party, however, we are not inclined to impose any cost. 18. In the result, this unnumbered criminal appeal is rejected as not maintainable. 18. In the result, this unnumbered criminal appeal is rejected as not maintainable. No order as to costs. Appeal dismissed.