Skip to content


The Public Prosecutor Vs. Konduru Venkata Raju - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 256 of 1956
Judge
Reported inAIR1962AP334
ActsCode of Criminal Procedure (CrPC), 1998 - Sections 349, 380, 408 and 562(1)
AppellantThe Public Prosecutor
RespondentKonduru Venkata Raju
Appellant AdvocateD.J. Jagannadharaju, Adv. for Addl. Public Prosecutor
Respondent AdvocateAduvu Ramarao, ;A.S.R. Pantulu and ;S.C. Venkatapathi Raju, Advs.
Excerpt:
criminal - appeal - sections 349, 380, 408 and 562 (1) of criminal procedure code, 1898 - magistrate convicted accused under section 380 and transmitted matter to additional district munsiff-magistrate court to consider probation - additional district munsiff-magistrate court convicted accused but no sentence awarded - whether appeal against such conviction maintainable - held, appeal under section 408 against conviction under section 380 maintainable even though no sentence had been awarded. - - having regard to the fact that the legislature has used these two words separately and distinctly, an appeal against the conviction alone is envisaged under sec......on a trial held by an asst. sessions judge, a district magistrate or any other magistrate. or any person sentenced under sec. 349 or in respect of whom an order has been made or a sentence has been passed under s. 380 by any magistrate, may appeal to the court of sessions'. this section confers a right of appeal against the conviction alone, or against the sentence under section 349 or where a case is referred to the competent magistrate by reason of the fact that the magistrate referring the case is not empowered to award sentence required in the case of a habitual offender, against an order or sentence passed under sec. 380. where of course an asst. sessions judge, district magistrate or any other magistrate competent to convict and sentence a person, convicts and sentences that.....
Judgment:

Jaganmohan Reddy, J.

(1) This case has been referred to us by our learned brother sharfuddin Ahmed, J. as involving interpretation of various sections of the Criminal Procedure Code. In order to understand the question involved for our decision, it is necessary to state a few facts.

(2) A-1 to A-6 were charged with offences punishable under Secs. 487 and 380, I.P.C. before the Judicial Second Class Magistrate, Piler, of whom A-1 was found guilty under Sec. 411, I. P. C. and sentenced to four months R. I. The Magistrate, however, convicted A-2 to A-6 also under Sec. 411 I. P. C. but having regard to the fact that they are first offenders and also to the fact that he had not the powers to give the benefit of S. 562, Cri. P. C. submitted the proceedings to the Additional District Munsiff-Magistrate, Madanapalli for passing order under Sec. 380, Cri. P. C.

It may be stated that before even the Additional District Munsiff-Magistrate, Madanapalli disposed of the matter under Sec. 380, Cri. P. C., A-6 appealed against his conviction to the sessions Judge, Chittoor who transferred the case to the Additional sessions Judge, Chittoor. The Additional Sessions Judge heard the case and acquitted A-6. Against that acquittal order, the State has filed an appeal. On the merits of the case in the appeal before our learned brother Sharfuddin Ahmed, J., the learned Public Prosecutor conceded that he had nothing to say and that the finding of the learned Additional Sessions Judge was unassailable.

The only question that is involved in this case, therefore, is one of law viz., whether an appeal would lie against a mere conviction, though sentence has not been awarded under Sec. 380. A similar question arose before the Madras High Court in Abdul Kareem v. Emperor, 1947 Mad WN 523: (AIR 1948 Mad 16) in which Yahya Ali, J. held that an appeal would lie against a preliminary conviction by a Magistrate who is not competent to act under Sec. 562(1) Cri. P. C. and as such had forwarded the case to a Magistrate who is competent to do so.

In that case the Sub-Divisional Magistrate, to whom an appeal was preferred, took the view that without a sentence a conviction is not complete and since no sentence had been passed in the case, an appeal against a mere conviction not accompanied by a sentence is no maintainable, and accordingly he did not enter into the merits of the case. In this case also the facts are similar, and the reasons of the learned Judge would equally apply.

(3) The learned Public Prosecutor, however, contends that this decision would create an anomaly in that the accused would have two rights of appeal, not only one against conviction passed under Sec. 380, Cri. P. C. but also against the sentence. This anomaly does not oppress us if it is permitted under the code. In fact, we find no difficulty in coming to the conclusion that the reasoning adopted in 1947 Mad WN 523: (AIR 1948 Mad 16) is fully supported and reinforced by the clear provisions of the Code itself.

Section 367, Cri. P. C. prescribed the language and the contents of judgement, in sub-section (2) whereof it enjoins a Judge or a Magistrate to specify the offence of which, and the section of the Indian Penal Code or other law, under which, the accused is convicted and the punishment to which he is sentenced. This sub-section uses two distinct words: ''conviction'' and 'sentence'. The 'conviction' relates to the offence of which the accused is guilty and the 'sentence' relates to the punishment which he is directed to undergo. Having regard to the fact that the Legislature has used these two words separately and distinctly, an appeal against the conviction alone is envisaged under Sec. 408, Cri. P. C. apart from providing separately appeals against order under Sec. 380, Cri. P. C. The language of Sec. 408, Cri. P. C. may now be examined. It is as follows:

'Any person convicted on a trial held by an Asst. Sessions Judge, a District Magistrate or any other Magistrate. or any person sentenced under Sec. 349 or in respect of whom an order has been made or a sentence has been passed under S. 380 by any Magistrate, may appeal to the Court of Sessions'. This section confers a right of appeal against the conviction alone, or against the sentence under section 349 or where a case is referred to the competent Magistrate by reason of the fact that the Magistrate referring the case is not empowered to award sentence required in the case of a habitual offender, against an order or sentence passed under Sec. 380. Where of course an Asst. Sessions Judge, District Magistrate or any other Magistrate competent to convict and sentence a person, convicts and sentences that person, such a person's appeal will be against conviction alone.

It is, therefore, evident that there are three classes of cases in which appeals have been provided for separately by Sec. 408, Cri.. P. C., first, against conviction, secondly, against sentence under S. 349, and thirdly, against an order under Sec. 308. It may be stated that a case referred to by a Magistrate of third class or a Magistrate, of Second Class under the provisions of Sec. 562 not being specially empowered by the State Government to give the benefit of provisions of Sec. 562 (1), is one which is referred after conviction by such Magistrate, while in cases of reference under Sec. 349, the Magistrate does not convict but merely expresses an opinion that the person who is forwarded to the Magistrate empowered to award a higher sentence, is guilty.

Having regard to this clear distinction between the provisions of the several sections, we have no doubt whatever that the conviction by a Second or Third Class Magistrate who has made a reference under Sec. 562, is appealable under Sec. 408, Cri. P. C., and if the Sessions Judge instead of acquitting, confirms the conviction, the accused would have merely a right of appeal against the sentence passed by the First Class Magistrate under S. 380, Cri. P. C. as specifically provided under Sec. 408, Cri. P. C. when the language of the section is clear, it cannot be said that any anomaly is created.

(4) in the result, we hold that an appeal lies and the acquittal by the sessions Judge, having regard to the submissions, is unassailable.

(5) The appeal is, accordingly, dismissed.

GE/K.B.

(6) Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //