PYLIKUNJU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are the accused in C. C. 23 of 1974 on the file of the Judicial Magistrate, I Class Ettumanoor. They were convicted by that Court for offences punishable under S.143, 447, and 379 read with S.149 IPC. For the offences under S.143 and 447 IPC., they were sentenced respectively to pay a fine of Rs 25/-each under each count and in default to undergo simple imprisonment for 15 days. For the offence under S.379 IPC., they were sentenced to pay a fine of Rs 50/- each and in default to undergo simple imprisonment for one month. Aggrieved by the above conviction and sentence, the petitioners filed Crl. A. 119 of 1974 before the Sessions Judge, Kottayam. They also filed Crl. R. P. 25 of 1974 for the identical relief probably not being sure whether an appeal would lie. The learned Sessions Judge dismissed the appeal as not maintainable on the ground that the sentence for each offence was Rs. 50/-. The Criminal Revision Petition was disposed of on the merits and it was dismissed. The present petition is filed by the petitioners under S.401 and also under S.482 of the Code of Crl. Procedure for setting aside the order dismissing the appeal.

(2.) The main contention put forward on behalf of the petitioner is that an appeal lies from the conviction and sentence and, therefore, the dismissal of the appeal was wrong.

(3.) The revision petition and the appeal were disposed of after the coming into force of the new Code of Criminal Procedure, Act 2 of 1974 Under S.376 of the new Code, no appeal lies when the sentence of fine not exceeding Rs. 100/- is passed by a Magistrate of the First Class. In the instant case, the total amount by way of fine comes only to Rs. 100/-. Therefore, if it is the new Code that applies, the dismissal of the appeal is correct. But the case wherein the petitioners were convicted was charge sheeted before the Judicial First Class Magistrate prior to the commencement of the new Code and it was pending trial when that Code came into force. Therefore, under S.484(2)(a) of the new Code the trial had to be proceeded with under the old Code as if the new Code had not come into force. S.404 of the old Code deals with right of appeal, and no appeal would lie except as provided in that section. It is an accepted doctrine that the right to file an appeal is a vested right. (See Garikapati v. Subbiah Choudhry ( AIR 1957 SC 540 )) The vested right can be taken away by a subsequent legislation only if there are clear indications therein to that effect. S 484 does not contain any provision which affects the right of appeal in cases pending at the commencement of the new Code Therefore, the right of appeal conferred on the petitioners under S.408 of the old Code remained in tact.