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2018 DIGILAW 791 (ORI)

Bhola Honhoga @ Ballah 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 Bhola Hongoga @ Ballah and co-accused Roshan Hembram faced trial in the Court of learned Asst. Sessions Judge, Kamakhyanagar, Dhenkanal in C.T.(SS) Case No. 81 of 2017 for the offences punishable under Sections 448, 395 of the Indian Penal Code read with sections 25 and 27 of the Arms Act. 3. The learned Trial Court vide impugned judgment and order dated 02.08.2018, found the appellant as well as the co-accused guilty under Sections 458, 395 of the Indian Penal Code read with sections 25 and 27 of the Arms Act and sentenced each of them to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 20,000/- (rupees twenty thousand) on each count, in default of payment of fine, to undergo R.I. for one year for the offences under Sections 458 and 395 of the Indian Penal Code and further sentenced to undergo R.I. for three years and to pay a fine of Rs. 10,000/- (rupees ten thousand), in default, to undergo R.I. for six months for the offence under section 25(1) of the Arms Act and R.I. for three years and to pay a fine of Rs. 10,000/- (rupees ten thousand), in default of payment of fine, to undergo R.l. for six months for the offence under section 27(1) of the Arms Act. The substantive 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. 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. 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, Kamakhyanagar, Dhenkanal and the substantive sentences imposed by the learned Trial Court for the offences i.e. 458 and 395 of the Indian Penal Code are seven years each and for offences under sections 25 and 27 of the Arms Act are three years each 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 each of the offences under Sections 458 and 395 of the Indian Penal Code will be a controlling factor for the smaller sentence of rigorous imprisonment for three years imposed for each of the offences under sections 25 and 27 of the Arms Act and all 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" is 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.P.C., 1973 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 remitted back to Sessions Judge.