ORDER
1. The question of law involved in this revision is, whether the default sentence of imprisonment is to be added to the substantive sentence of imprisonment for purposes of determining the appellate forum under S. 374, Cr.P.C.
2. Section 374, Cr.P.C. to the extent relevant reads :
“374. Appeals from convictions.
(1) ………
(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 First Class or of the Second Class, or
(b) to (c) ……..
May appeal to the Court of Session.”
3. In the case on hand, the petitioner was sentenced to suffer rigorous imprisonment for seven years and also to pay a fine of Rs. 100 in default to suffer simple imprisonment for one month by the Assistant Sessions Judge when an appeal was filed in the Court of Session the same was rejected as not maintainable on the ground that the substantive sentence of imprisonment and the default sentence of imprisonment put together is more than seven years and therefore appeal lay to the High Court under S. 374(2), Cr.P.C.
4. Mr. Chandrasekhara Rao, the learned Counsel submitted that the words “sentence of Imprisonment” occurring in S. 374(2), Cr.P.C. only mean substantive sentence of imprisonment and do not include the default sentence for non-payment of fine and since the substantive sentence of imprisonment do not exceed seven years it is the Court of Session that is the appellate forum under S. 374(3), Cr.P.C.
5. The learned Additional Public Prosecutor, on the other hand, submitted that sentence of imprisonment takes in both the substantive as well as the default sentence and therefore the Court below has rightly rejected the appeal as not maintainable.
6. Before deciding the issue involved, it is apposite to notice the corresponding provision in the earlier Codes and the changes it underwent.
7. Section 411 of the Code of Criminal Procedure, 1882 is a provision dealing with appellate forum and it reads :-
“S. 411. Any person convicted on a trial held by a Presidency Magistrate, may appeal to the High Court if the Magistrate has sentenced him to imprisonment for a term exceeding six months or to fine exceeding two hundred rupees.”
In Schein v. The Queen Empress (1), (1889) ILR 16 Cal 799, the Calcutta High Court was to consider a question similar to the one on hand since there also besides the substantive sentence of six months there was default sentence; the limit for deciding the appellate forum being six months’ imprisonment as per S. 411 construing S. 411, it was held :
“In this case the Magistrate has neither sentenced the appellant to imprisonment exceeding six months nor has he sentenced him to a fine exceeding two hundred rupees. But it is contended by the pleader for the appellant that the combination of the sentence of imprisonment and fine gives an appeal. That is not justified by the words of S. 411 and we think a reference to S. 415 makes the construction of the earlier section clear ….. it follows that the Legislature did not intend to apply to Section 411 the provisions in S. 415 that is to say, that a combination of punishments does not give a right of appeal under S. 411.”
It was accordingly concluded by the Calcutta High Court that the appeal does lay to the High Court.
8. In Jotharam Davay, (1881) ILR 11 Mad 30, the Madras High Court was considering a similar question while interpreting Section 411 of 1882, Cr.P.C. The appellant therein was sentenced to suffer six months’ imprisonment and to pay a fine of Rs. 200/- in default to suffer two months’ imprisonment. The contention before the Madras High Court was also to the effect that the substantive sentence of imprisonment and the default sentence of imprisonment have to be added together. In that background it was held :
“…… We think that the words “to imprisonment for a term exceeding six months or to fine exceeding two hundred rupees” are confined in their meaning to the substantive sentences and cannot be extended to include an award of imprisonment in default of payment of fine, the operation of which is contingent only on the fine not being paid.”
The Madras High Court is, thus, of the clear view that the imprisonment contemplated for purposes of deciding the appellate forum is only substantive sentence of imprisonment and do not include the default sentence of imprisonment. To the same effect is the decision of the Bombay High Court in Queen Empress v. Hari Savba, (1896) ILR 20 Bom 145, where also Section 411 of 1882, Cr.P.C. was the subject of construction.”
9. In the Empress v. Shumsheer Khan, (1881) ILR 6 Cal 624, the Calcutta High Court was considering the question as to the necessity for confirmation of the sentence by the Sessions Judge. Section 36 of 1982, Cr.P.C. contemplated confirmation in case the sentence imposed is more than three years. There a Head Constable was sentenced to imprisonment for three years and also to pay a fine of Rs. 1000/- in default to suffer imprisonment for six months. Gunninham, J. in a concurrent judgment held that the words of S. 36 must be construed to refer to cases in which the sentence of imprisonment is upwards of three years, and to leave aside by any sentence the Magistrate may pass a fine or whipping.
10. For purposes of deciding the appellate forum as also for confirmation of the sentence, the view settled thus is that it is the substantive sentence of imprisonment that is the criterion and the default sentence has no part to play. The relevant provision again in 1898, Cr.P.C. is S. 408. To the extent relevant, it reads :
“Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the First Class, or any person sentenced under section 349 by a Magistrate of the First Class may appeal to the Court of Session.
Provided as follows :-
(a) …..
(b) when in any case an Assistant Sessions Judge or a Magistrate specially empowered under section 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal shall lie to the High Court.”
11. As per the above section of 1898, Cr.P.C., the criteria for deciding the appellate forum is ‘Sentence of imprisonment for a term exceeding four years. In Roda Singh v. Emperor, 1919 Cri LJ 300 : AIR 1918 Lahore 385, the accused was convicted and sentenced to suffer imprisonment for four years and also to pay a fine of Rs. 100/- in default to imprisonment for six months. Since the substantive and default sentences put together exceeded the period of four years, the argument before the Lahore High Court was that it is the High Court that was the appellate forum under S. 408, Cr.P.C. of 1898. The Lahore High Court relying on the earlier decisions referred to held that the default sentence of imprisonment cannot be taken into consideration for deciding the appellate forum.
12. In Mujibur Rahaman Khan v. Shatraunui, AIR 1934 Oudh 433, the High Court of Oudh was considering a question as to whether the sentence of fine, whipping or default sentence of imprisonment needs to be added to the substantive sentence of imprisonment for purposes of deciding the appellate forum. There, the accused was sentenced to suffer imprisonment for four years and also to whipping. The High Court while answering the question in the negative held :-
“In my opinion under S. 408(b), Cr.P.C., the appeal should have been filed in the Court of the Sessions Judge. The mere fact that the accused has been sentenced to whipping does not alter the position. I consider that the phrase ‘sentence of imprisonment’ for a term exceeding four years in the aforesaid clause has a reference to the substantive sentence of imprisonment apart from any sentence of whipping or fine or imprisonment in default of payment of fine.”
13. The case law thus referred to has been consistent throughout and accordingly it is solely the substantive sentence of imprisonment awarded that governs the field to decide the appellate forum.
14. At the outset itself S. 374, Cr.P.C. of 1973 has been extracted. The significant change, as can be noticed, is that the sentence of imprisonment should exceed seven years to move the High Court as the appellate forum instead of four years as per the Criminal Procedure Code of 1898. It is apposite to notice the observation of the Law Commission in its 41st Report touching Sections 408 and 411-A of 1898, Cr.P.C. the observations reads :
“In our opinion all appeals from sentences passed by Assistant Sessions Judge or S. 30, Magistrates irrespective of the severity of the sentences, should lie to the Court of Session. There is no need for the special provision that where the sentence passed is one of imprisonment for more than four years, the appeal will lie to the High Court. The load on the High Court will be lightened to a small extent by transferring these appeals to the Court of Session.”
Thus, lightening the load on the High Court is the primary reason behind bringing in the change in the period of imprisonment.
15. Once more feature noteworthy at this juncture is a comparative analysis of S. 376 and 374 of the Code of Criminal Procedure. S. 376 while barring appeals in the specified cases noted therein permits by means of a proviso bringing in the appeals if there is a combination of other punishment. S. 376 reads :-
“376. No Appeal in petty cases : Notwithstanding anything contained in S. 374 there shall be no appeal by a convicted person in any of the following cases namely
(a) Where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or both such imprisonment and fine;
(b) Where a Court of Session or a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such imprisonment and fine
(c) and (d) xx xx xx xx xx
Provided that an appeal may be brought against any such sentence if any other punishment is combined with it, but such sentence shall not be appealable merely on the ground;
(i) xx xx xx xx xx”
The Parliament, thus, is conscious of combination of punishments and their implication in the matter of deciding the appellate forum or right of appeal. The presence of specific proviso to S. 376 and the absence of any such proviso to S. 374 Cr.P.C. of 1973 makes it crystal clear that the Parliament has not intended combination of the substantive and default sentences of imprisonment for purposes of deciding the appellate forum u/S. 374 of the Cr.P.C. 1973.
For the foregoing reasons, the question framed is answered in the negative and accordingly it follows that the default sentence of imprisonment cannot be added to the substantive sentence of imprisonment for purposes of deciding the appellate forum u/S. 374 Crl.P.C. In this view of the matter, the order under revision is set aside and the matter is remanded to the lower appellate court for disposal afresh on merits as per law.
16. The Revision is accordingly allowed.
17. Revision allowed.