IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3303 of 2008()
1. HUSSAIN (KAPPAD), S/O SHAHUL HAMEED,
... Petitioner
Vs
1. G.SIVANANDAN, AKHIL NIVAS,
... Respondent
2. STATE OF KERALA REP. BY
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :15/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3303 OF 2008
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Dated this the 15th day of October, 2008
O R D E R
Petitioner is the accused in C.C.215 of 1999 on the file
of Judicial First Class Magistrate-I, Nedumangad, a complaint
filed by first respondent alleging an offence under section 138 of
Negotiable Instruments Act, and after trial, convicted and
sentenced him for the offence under section 138 of Negotiable
Instruments Act on 31.10.2000. Petitioner did not file an appeal
challenging the conviction. First respondent filed Criminal
Revision Petition 1066 of 2000 before this Court challenging the
inadequacy of the sentence. This court as per order dated
19.3.2007 set aside the sentence and remitted the matter to the
learned Magistrate to reconsider the sentence and to pass
appropriate order holding that the sentence imposed was
inadequate. Learned Magistrate thereafter heard the petitioner
and first respondent and sentenced him to imprisonment till
rising of the Court and a fine of Rs.1,000/- and in default simple
imprisonment for three weeks and also a compensation of
Rs.50,000/- under section 357(3) of Cr.P.C. Petitioner filed Crl.
CRRP3303/08 2
Appeal 780/2007 before Sessions Court, Thiruvananthapuram.
Learned Sessions Judge dismissed the appeal finding that
petitioner is not entitled to challenge the conviction as he did
not file an appeal against the conviction and remand was only
for the purpose of awarding appropriate sentence. According to
the learned Sessions Judge, an appeal against inadequacy of
sentence is only as provided under section 377 of Code of
Criminal Procedure and it can only be by the State and the
appeal is not maintainable. Revision is filed challenging the
order.
2. Learned counsel appearing for petitioner and the
learned public prosecutor were heard. In the nature of the
order to be passed in this revision petition, it is not necessary to
issue notice to first respondent.
3. It is true that petitioner did not file an appeal
challenging his conviction and sentence passed by the learned
Magistrate on 31.10.2000. The case was remanded to the
Magistrate by this Court in Crl.R.P.1066 of 2000 only for
awarding an adequate sentence. In such circumstances, when
learned Magistrate thereafter awarded an appropriate sentence,
petitioner is not entitled to challenge the conviction by filing an
CRRP3303/08 3
appeal against the said judgment. But it is different from stating
that petitioner is not entitled to file an appeal at all.
4. Section 377 of Code of Criminal Procedure deals with
an appeal by the State Government against a sentence. Under
sub section (1) save as otherwise provided in sub section (2), the
State Government may, in any case of conviction on a trial held
by any Court other than a High Court, direct the Public
Prosecutor to present an appeal against the sentence on the
ground of its inadequacy. Sub section (2) deals with a case
investigated by the Delhi Special Police Establishment
constituted under Delhi Special Police Establishment Act,1946
or by any other agency empowered to make investigation or
under any Central Act other than this Code in which the case an
appeal as against inadequacy is to be filed on the direction of
the Central Government. Sub section 3 of section 374 deals
with an appeal by a person convicted on trial by a Magistrate or
Assistant Sessions Judge. It reads:
“Save as otherwise provided in sub-section (2),
any person,–
(a) convicted on a trial held by a
Metropolitan Magistrate or Assistant
CRRP3303/08 4
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.”
Section 385 provides the procedure to be followed by the
appellate Court hearing an appeal if not dismissed summarily.
Sub section 2 of section 385 mandates that appellate Court shall
send for the records of the case if such record is not already
available in that Court and thereafter hear the parties. Proviso
thereto makes it absolutely clear that an appeal is maintainable
only against the extent or the legality of the sentence. It reads:
” Provided that if the appeal is only as to the
extent or the legality of the sentence, the
Court may dispose of the appeal without
sending for the record”
Sub section 3 of section 385 makes that aspect further clear.
It reads:
” Where the only ground for appeal from a
CRRP3303/08 5
conviction is the alleged severity of the
sentence, the appellant shall not, except
with the leave of the Court, urge or be heard
in support of any other ground.”
Therefore the view taken by the learned Sessions Judge that an
appeal will lie only against the conviction and not the sentence
alone is not legally sustainable. In such circumstances the
finding of the learned Sessions Judge that the criminal appeal is
not maintainable, is illegal.
5. It is clear from the judgment of the learned
Magistrate that the sentence is not legal. Apart from sentencing
petitioner to imprisonment till rising of Court, a fine of
Rs.1,000/- was awarded with a default sentence of simple
imprisonment for three weeks. In spite of the fact that fine
forms part of the sentence, learned Magistrate has also directed
payment of compensation under section 357(3) of Code of
Criminal Procedure. It is per se illegal as compensation under
sub section 3 of section 357, could be awarded only if fine does
not form part of the sentence. When fine forms part of the
sentence, compensation could be awarded only under sub
section 1 of section 357, which could only the fine or its part.
CRRP3303/08 6
Revision is allowed. Judgment of the Sessions Judge is set
aside. Crl. Appeal 780 of 2007 is remanded to Sessions Judge
for disposal in accordance with law, after hearing the parties.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-