Arun Rai vs The State of Bihar

Ashwani Kumar Singh, J—This appeal under sections 374 and 389(1) of the Code of Criminal Procedure (for short "the Code) is directed against the judgment and order dated 6.4.2010 passed by learned 3rd Assistant Sessions Judge-cum-Chief Judicial Magistrate, Muzaffarpur in Sessions Trial No. 8 of 1992 arising out of Minapur P.S. Case No. 80 of 1986 whereby the learned 3rd Assistant Sessions Judge-cum-Chief Judicial Magistrate, Muzaffarpur, has convicted the appellant and two others under sections 307/149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/-.

While admitting the appeal, vide order dated 26.5.2010, a Bench of this Court granted bail to the appellant and summoned the lower court records.

At the outset, it appears that the instant appeal has been inadvertently admitted by this Court.

Section 374 of the Code lays down forum for filing appeals by the accused persons against the order of convictions. It reads as follows:

"374. Appeals from convictions. - (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional 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.

(3) Save as otherwise provided in sub-section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session."

A bare perusal of the provisions prescribed under section 374 of the Code would make it clear that three different forums have been laid down in respect of the trials held by different courts (i) If a trial is held by the High Court in its extraordinary original criminal Jurisdiction, an appeal would lie to the Supreme Court and not a Bench of Judges of the High Court; (ii) If a trial is held by a Sessions Judge or an Additional Sessions Judge or by any other court in which a sentence of imprisonment of more than seven years has been passed, an appeal would lie to the High Court; and (iii) If a trial is held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first or second class, except cases falling under sub-section (2) of section 374 or in cases falling under sections 325 and 360, an appeal will lie to the court of session.

In the instant case, the trial has been held by an Assistant Sessions Judge and sentence of seven years has been awarded. Hence, the appeal is not maintainable before this Court. However, the fact of the matter is that on wrong advice of the counsel an appeal has been filed before this Court. The stamp reporter also failed to point the defect in filing the appeal. The appeal has been admitted by this Court due to oversight and bail has been granted to the appellant. The matter is pending before this Court for over five years. Considering all these facts, though the appeal is not maintainable before this Court, on equitable consideration, I refrain myself from dismissing the appeal as not maintainable.

Considering the facts and circumstances of the case, I am of the opinion that in the instant case it will be in the interest of justice to transfer this appeal to the appropriate appellate court, instead of returning the memo of appeal to the appellant for presenting the same before the appellate court.

Accordingly, this appeal is transferred to the learned Sessions Judge, Muzaffarpur and on receipt of the same the learned Sessions Judge shall re-register a case and proceed in accordance with law.

It is made clear that the bail order passed on 26.5.2010 in respect of the appellant shall continue during the pendency of the appeal.

The Registry is directed to transmit copy of the memo of appeal and the entire lower court records to the learned Sessions Judge, Muzaffarpur forthwith through special messenger. While doing so, the Registry shall retain the original copy of the memo of appeal and the original order-sheet of the case.

Since the order is made in presence of the counsel for the appellant, no notice is required to be issued to the appellant by the court below. The learned Sessions Judge, Muzaffarpur is directed to hear the appeal on merits and dispose of the same as early as possible, but not later than six months from the date of receipt of a copy of the order after issuing appropriate notice to the learned Public Prosecutor in this regard.