Jubairiya and Another vs State of Kerala

R. Basant, J.—Which is the court to which an appeal u/s 449 Cr.P.C. would lie against an order passed by the Assistant Sessions Court u/s 446 Cr.P.C? Is this appeal u/s 446 Cr.P.C. maintainable before this Court or should the appeal be preferred before the Sessions Court? These are the short questions that arise for consideration in this appeal now.

The impugned order u/s 446 Cr.P.C. has been passed by the learned Assistant Sessions Judge, Kottarakara. u/s 449(ii) Cr.P.C., when the impugned order is passed by a Court of Session, an appeal lied to the court to which an appeal lies from an order made by such court. The Assistant Sessions Court is also a Court of Session. To which court does an appeal lie from an order passed by the Assistant Sessions Court. This is the short question that has got to be considered.

No binding or persuasive precedents are cited before me by the learned Counsel for the appellant though sufficient opportunities were given to research and make submissions. u/s 374(3)(a) Cr.P.C. an appeal from a judgment of conviction passed by the Assistant Sessions Court would lie before the Court of Session. But when the sentence imposed exceeds seven years, the appeal shall lie to the High Court u/s 374(2) Cr.P.C. The Assistant Sessions Court has jurisdictional competence to impose a sentence not exceeding ten years u/s 28(3) Cr.P.C. If the sentence is upto seven years, the appeal from a judgment of the Assistant Sessions Court would lie before a Court of Sessions. If the sentence exceeds seven years, the appeal would lie to the High Court.

Thus, it can be summarised that an appeal ordinarily would lie to the Court of Sessions from an order passed by an Assistant Sessions Judge; but where the sentence imposed exceeds imprisonment for seven years, the appeal will lie before the High Court. Appeal against any sentence of fine would hence lie to the Court of Session only. The order u/s 446 Cr.P.C. imposes only a pecuniary liability to pay penalty on forfeiture of a bond.

While construing Section 449(ii) Cr.P.C., the ordinary course of events and not the extraordinary course of events will have to be taken into consideration. So reckoned, I find it easy to come to the conclusion that the appeal from an order of the Assistant Sessions Judge can be held to lie ordinarily - for the purpose of Section 449(ii) Cr.P.C., before the Court of Session. I take specific note of the fact that appeal against any sentence of fine imposed by an Assistant Sessions Judge lies before a Sessions Judge and the order u/s 446 Cr.P.C. imposes only an obligation to pay money. In this view of the matter, the objection raised by the Registry against the maintainability in this appeal is found to be justified. The appeal was directed to be numbered for hearing on the question of maintainability.

I am fortified in this conclusion by an unreported decision of Justice K.R. Udayabhanu in an unnumbered Crl. Appeal of 2006 dated 22/2/2006. I agree with the learned Judge that an appeal u/s 449(ii) Cr.P.C. from the order passed by the Assistant Sessions Judge u/s 446 Cr.P.C. must lie before the Court of Session and not before this Court.

The learned Counsel for the petitioner submits that if the appeal is dismissed without considering merits, the valuable right of the petitioner would be lost as there would be delay by the time a fresh appeal is filed before the learned Sessions Judge. I am satisfied, in these circumstances, that the Registry can be directed to forward this Crl. Appeal to the learned Sessions Judge, Kollam, for disposal. That court shall number the appeal arid dispose of the same in accordance with law. The records shall forthwith be transmitted to the Sessions Court, Kollam. The appellant shall appear before that court without waiting for any further directions on 6/10/2008.

This Criminal Appeal is thus held to be not maintainable before this Court and is disposed of with the above directions regarding disposal of the same.