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2016 DIGILAW 109 (ORI)

Noki v. State of Orissa

2016-02-09

S.K.SAHOO

body2016
ORDER : S.K. Sahoo, J. 1. The appellant Noki @ Laki Majhi faced trial in the Court of learned C.J.M.-cum-Asst. Sessions Judge, Kalahandi, Bhawanipatna in Sessions Case No. 94/44 of 2005 for the offences punishable under Section 376 and 456 of the Indian Penal Code. Learned Trial Court vide impugned judgment and order dated 31.10.2006, found the appellant guilty under Sections 376 and 456 of IPC. The appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only, in default of payment of fine, to undergo further R.I. for one year for the offence under Section 376 of IPC. The appellant was further sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/- (Rupees two thousand) only, in default of payment of fine, to undergo rigorous imprisonment for two months for the offence under Section 456 of IPC. Both the sentences were directed to run concurrently. It was further directed that the period undergone to be set off and out of the total fine amount of Rs. 12,000/- if realized, a sum of Rs. 7,000/- (Rupees seven thousand) only be paid to the victim towards compensation. 2. It appears that on receipt of an application from the Jail, this Jail Criminal Appeal was registered and on 28.01.2008 after condoning the delay in filing the Jail Criminal Appeal, the appeal was admitted. 3. Section 374(2) of Cr.P.C. states as follows:-- "Any person convicted on a trial held by a Sessions Judge or an Addl. 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." 4. From a bare reading of the provision, it is clear that an appeal shall lie to the High Court against an order of conviction, on a trial held either by a Sessions Judge or an Addl. Sessions Judge and if the that is held by any other Court and the sentence of imprisonment it passed for more than seven years either against one accused or against any other accused convicted at the same trial then also the appeal shall lie to the High Court. Sessions Judge and if the that is held by any other Court and the sentence of imprisonment it passed for more than seven years either against one accused or against any other accused convicted at the same trial then also the appeal shall lie to the High Court. Thus, if an Assistant Sessions Judge, who is competent to pass a sentence not exceeding ten years conducts a trial and imposes a sentence of seven years or less, the appeal shall lie to the Sessions Judge and not to the High Court. However, if the Assistant Sessions Judges imposes a sentence over seven years, then the appeal shall lie to the High Court and not to the Sessions Judge. Similarly if two accused are facing same trial in the Court of Assistant Sessions Judge and the first accused is convicted for an offence and sentenced to imprisonment for two years and the second accused is convicted for another offence and sentenced to imprisonment for more than seven years, then not only the second accused but also the first accused have to prefer an appeal in the High Court. In other words, the appeal filed by the first accused before the Sessions Judge even though he is sentenced to imprisonment for two years, shall not be maintainable. However, if those two accused face- separate trials for the same occurrence in the Court of Assistant Sessions Judge and sentences as stated above are passed then first accused can prefer appeal to the Sessions Judge. 5. In the present case in view of the fact that the trial was conducted in the Court of C.J.M.-cum-Asst. Sessions Judge, Kalahandi, Bhawanipatna and in view of the sentence imposed by the learned Trial Court for the two offences and particularly in view of the direction that the sentences are to run concurrently, the longest substantive sentence of R.I. for seven years imposed for offence under Section 376 of the IPC will be a controlling factor for the smaller substantive sentence of R.I. for one year imposed for offence under Section 456 of IPC and both would run at the same time and not one after the expiration of the other. Thus, it is clear that the same will not come within "the sentence of imprisonment for more than seven years" as envisaged under Section 374(2) of Cr PC. Thus, it is clear that the same will not come within "the sentence of imprisonment for more than seven years" as envisaged under Section 374(2) of Cr PC. The default sentence in case of non-payment of fine is not a factor to decide the jurisdiction of the appellate Court in as much as in the eventuality the fine amount is paid then the default sentence automatically ceases. Even though an accused does not pay the fine amount, he may have to undergo the default sentence of imprisonment in addition to the substantive sentence which has been passed for the offence but that will not be a factor to determine the jurisdiction of the appellate Court. The default sentence of imprisonment shall not be added to be substantive sentence imprisonment for the purpose of deciding the jurisdiction of the appellate forum under Section 374 of Cr.P.C. 6. In the case of Niranjan Nayak v. Ramesh Kumar Mohapatra, reported in Vol. 78 (1994) Cuttack Law Times 659, it is held that a sentence of fine is different from the sentence of imprisonment. In case of a sentence of fine, the default condition attached to it is not a sentence in the first place. It is consequence of non-payment. Its operation is contingent only on the fine not being paid. For deciding the appellate forum under Section 374(2) of the Code, the default sentence of imprisonment cannot be added to the substantive sentence of imprisonment. 7. Therefore, I am of the view, in view of the sentence imposed in the present case, the appeal lies to Sessions Judge, Kalahandi, Bhawanipatna. The registry is directed to send back the lower Court records along with the application and other connected documents which have been received from the appellant from jail to the learned District and Sessions Judge, Kalahandi, Bhawanipatna forthwith along with a copy of the order who shall register the appeal and proceed in accordance with law. 8. Since the appellant was taken into custody on 5.6.2005 and he was never released on bail, he must have been released from custody in the meantime after serving the sentences imposed by the learned Trial Court. If not released, he should be set at liberty forthwith if his detention is not required in any other case. 9. The JCRLA is accordingly disposed of. Urgent certified copy of this order be granted on proper application. Disposed off