C GOPINATHAN Vs. KRISHNAN AYYAPPAN

JUDGEMENT

(1.) A question of law of some importance has been raised in this revision. The question is this: Will an appeal lie against the sentence passed by the trial Magistrate in a case where the accused were convicted by the High Court The backdrop of the said question consists of the following facts:

(2.) Sri. Pirappancode V.S. Sudheer, learned counsel for the petitioner, contended that no appeal is maintainable in law unless there is express provision, either in the Code of Criminal Procedure (for short the Code) or in any other law, entitling a person to file appeal against a particular order, judgment or proceeding. The said principle, no doubt, is given statutory recognition by including S.372 in the Code which contains a general ban that no appeal shall lie from any judgment or order of a criminal court "except as provided for by this Code or by any other law for the time being". Learned Sessions Judge sought support from S.374(3)(a) of the Code for his conclusion in favour of maintainability of the appeal. Sri. Nandakumara Menon, learned counsel for the respondents, made an endeavour to keep the appeal maintainable on the same reasoning which the learned Sessions Judge adopted. In order to analyse the scope of Clause (b), the whole section has to be read. S.374 reads thus:

(3.) S.375 and 377 are the only provisions in the Code which permit appeals against sentence alone. The former is restricted to cases in which the accused is convicted on a plea of guilty and the latter is restricted to cases in which the State directs the Public Prosecutor to appeal to the High Court against the sentence on the ground of insufficiency. Merely because appeal is provided against sentence in certain cases, Court cannot support appealability by implication in other cases where sentence alone is required to be challenged. A right of appeal is not a natural or inherent right and hence it must be referable to express provisions in a statute. A Constitution Bench of the Supreme Court has observed thus: "An appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself (Durga Sankar v. Raghuraj Singh and others, AIR 1954 S.C. 520). In view of the general ban contained in S.372, it is an idle exercise in trying to trace out appeal power by implication in the absence of express provision. Learned Sessions Judge referred to S.386(b)(iii) of the Code which confers powers on the appellate court to alter the nature or the extent of the sentence without altering the finding. The said provision deals with the powers of the appellate court and not any right to prefer appeal. In R.G. Jadav v. State of Bombay (AIR 1960 S.C. 748), the Supreme Court considered a case where the High Court directed that an appeal shall be heard only on the point of sentence, in a case where appeal would lie against both the conviction and sentence. Their Lordships held that while an appellate court has power to dismiss an appeal summarily, it has no power to direct that the appeal shall be heard only on the point of sentence, though the appellate court after hearing the appeal has the power to reduce the sentence. Learned counsel for the petitioner cited the decision in Dr. Joshi Reddy v. State of Hyderabad ( 1952 CriLJ 702 ) where the Division Bench of the Hyderabad High Court considered the appealability of a judgment in which the sentence was kept in abeyance by the Trial Court. According to the learned Judges, the fact that the accused was not really undergoing the sentence is of no consideration in holding whether the appeal is maintainable or not. Though the said decision has no direct bearing on the question involved here, it has one advantage in finding support to the position that an appeal can be maintained against a conviction without challenging the sentence. But there is no authority to support the other position that an appeal can be filed against a sentence (except as provided in S.375 and 377) when the conviction part remains non appealable. For the above reasons, I hold that the appeal filed by the accused in the Sessions Courts is not maintainable.