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2018 DIGILAW 790 (ORI)

Laxman Behera v. State Of Orissa

2018-10-05

S.K.SAHOO

body2018
ORDER S. K. Sahoo, J. - In view of the cessation of the Court work as per the resolution dated 03.10.2018 of the High Court Bar Association, neither the learned counsel for the appellant nor the learned counsel for the State is present in Court. 2. The appellant Laxman Behera faced trial in the Court of learned Asst. Sessions Judge, Dhenkanal in C.T.(SS) Case No. 145 of2016/T.R. No.11 of 2017 for the offences punishable under Sections 323, 376(1) and 506 of the Indian Penal Code. 3. The learned Trial Court vide impugned judgment and order dated 31.07.2018, though acquitted the appellant of the charge under Section 506 of the Indian Penal Code but found him guilty under Sections 376(1) and 323 of the Indian 'Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5000/-(rupees five thousand) only, in default of payment of fine, to undergo further R.1. for one month for the offence under Section 376(1) of the Indian Penal Code. The appellant was further sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- (rupees one thousand) only, in default of payment of fine, to undergo further simple imprisonment for one month for the offence under Section 323 of the Indian Penal Code. Both the sentences were directed to run concurrently. 4. section 374(2) of Cr.P.C., 1973 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" 5. 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 trial is held by any other Court and the sentence of imprisonment is 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 trial is held by any other Court and the sentence of imprisonment is 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. 6. In the present case in view of the fact that the trial was conducted by Asst. Sessions Judge, Dhenkanal and the substantive sentences imposed by the learned Trial Court for the two offences i.e. 376(1) and 323 of the Indian Penal Code are seven years and six months respectively and particularly in view of the direction that the sentences are to run concurrently, the longest substantive sentence of rigorous imprisonment for seven years imposed for offence under Section 376 of the Indian Penal Code will be a controlling factor for the smaller sentence of simple imprisonment for six months imposed for offence under Section 323 of the Indian Penal Code 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.P.C., 1973 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 the substantive sentence imprisonment for the purpose of deciding the jurisdiction of the appellate forum under Section 374 of Cr. PC. 7. The default sentence of imprisonment shall not be added to the substantive sentence imprisonment for the purpose of deciding the jurisdiction of the appellate forum under Section 374 of Cr. PC. 7. In case of Niranjan Nayak vs. Ramesh Kumar Mohapatra, reported in Vol. 78 (1994) CLT 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 nonpayment. 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. 8. When the matter was listed on 03.10.2018 for admission, I directed for fresh stamp reporting keeping in view the ratio laid down in cases of Noki @ Laki Majhi vs. State of Orissa reported in (2016) 63 OCR 813 and Ganeswar Majhi vs. State of Orissa reported in (2017) 68 OCR 624 regarding maintainability of this appeal before this Court. On fresh stamp reporting, it is indicated that the appeal is not maintainable before this Court. 9. Therefore, I am of the view, in view of the sentence imposed in the present case, the appeal lies to Sessions Judge, Dhenkanal. The appeal memo along with all the connected documents filed be sent to the learned Sessions Judge, Dhenkanal by the Registry forthwith along with a copy of this order, keeping xerox copies for future reference. The learned Sessions Judge, Dhenkanal shall register the appeal and proceed in accordance with law. 10. Since the appellant is in judicial custody, a copy of the order shall also be sent to him for reference. 11. Urgent certified copy of this order be granted on proper application. 12. Matter sent to Sessions Judge.