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The Bombay High Court in a recent criminal writ petition has held that accused has no fundamental/statutory right to appeal against conviction eo instanti.

Appeals can only be made after both the sentence and conviction order is out, the High Court has held.

The bench of Justices SS Shinde & N.J. Jamadar, while dismissing the petition further held that,

"If we accept the submission on behalf of the petitioner that in every matter, where the accused is held guilty of a particular offence, he has a right to prefer an appeal against the said finding of holding him guilty, then there is a clear and present risk of destroying the integrity of trial. It would entail a two stage consideration by the appellate Court. First, after the accused is held guilty of the offence. Second, consequent to imposition of sentence on the accused. Such proposition cannot be countenanced, especially in the absence of a statutory prescription."

WHAT ARE THE FACTS?

The petitioner was sent for trial in a proceedings arising out of C.R. No. 128/2015 registered with J.J. Marg Police Station, Mumbai, for the offences punishable under Section 376(1), 376(2) (n), 506(II), 354 of the Penal Code and Section 4 and 6 of Protection of Children From Sexual Offences Act, 2012. The learned Sessions Judge by an order dated 18th August, 2021, held the petitioner guilty of offence punishable under Section 376(2) (n) and 506 (II) of the Penal Code.

After the order was pronounced and the judgement yet to be out, the petitioner had made a prayer for a copy of the judgement which was denied.

PETITIONER’s CONTENTION's

The petitioner has contended that he must have been provided with a copy of judgment because the petitioner has a fundamental right to prefer an appeal against the very order of conviction, as distinct from the judgment of conviction.

It has been submitted that there are two stages two distinct parts in the judgment of conviction and sentence. The judgment of conviction precedes the proceedings that are conducted by trial Court to impose the sentence. At the stage of delivery of judgment itself, a right to prefer an appeal there against arises to the accused. The denial of the opportunity to prefer an appeal against the order of conviction causes grave prejudice to the fundamental right of the accused.  The petitioner stressed upon S. 235 Of the Indian Penal Code to put forth his point along with various precedents including ones set by Supreme Court.

SESSIONS JUDGE’S REPORT

The High Court had ordered for a report from the Sessions Judge’s report on the matter. The report submitted states that the entire judgment was already typed and made ready in all respects on 18th August 2021 itself. The learned Sessions Judge has further submiited that in the intervening period six applications were fled on behalf of the accused and the matter was required to be adjourned on twelve occasions.

RESPONDENT’s SUBMISSION

On behalf of the Respo0ndents, the Assistant Public Prosecutor submitted that according to Section 354 and Section 363 of the Penal Code the right of the accused to have a copy of the judgment crystallizes only upon the pronouncement of the sentence. The sentence forms an integral part of the judgment and till the sentence is pronounced there is no right of appeal against the order holding the accused guilty of the offences charged.

OPERATIVE ORDER

• As to S. 235 of the penal code, the court held that:

“On a proper construction of the said provision, especially sub section (2 )of Section 235 of the Code, it becomes abundantly clear that an important and, in a sense, inviolable right of the accused to be heard on the point of sentence is secured thereby. The said provision, in our view, cannot be construed in such a fashion as to provide right to the accused to prefer an appeal against the order of conviction only.

• Further, (b) Clause 'c' of Sub Section (1) of Section 354 indicates that the Court should specify the offence of which and Section of the particular enactment under which the accused is convicted and the punishment to which he is sentenced. Emphasis as underlined.
• This position is further clarifed by Sub Section (2) and (3) of Section 374 of the Code. The forum before which the appeal may lie is made dependent upon the quantum of sentence imposed by the trial Court.
• To further solidify the inseparability of sentence and judgement of conviction, the court has referred to Section 386 of the Code. The Section indicates that in a appeal from conviction the appellate Court may

1. reverse the fnding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or
2. alter the finding, maintaining the sentence, or
3. with or without altering the finding alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.

 

Case Title: Pankaj Arjunbhai Koli vs The State Of Maharashtra

Access Copy of Judgment Here