Shiv Sagar @ Lotan vs State of U.P.

Amar Saran and R.K. Rastogi, JJ.—This is an appeal against the judgment and order dated 14.3.2005 passed by Sri Subhash Chandra Mangla then learned Special Judge (N.D.P.S. Act), Kanpur Nagar in S.T. No. 222/2003, State v. Shiv Sagar alias Lotan convicting the accused appellant under sections 20(B)(ii)(c) of N.D.P.S. Act and sentencing him to 12 years'' R.I. and to a fine of Rs. 1,00,000/ ( Rupees one lac).

This appeal was entertained by Hon''ble Single Judge of the Court and was also listed for hearing before the Hon''ble Single Judge.

On 7.7.2008 Hon''ble (Mrs.) M. Chaudhary, J passed an order to the following effect;

"This appeal is cognizable by the Division Bench. List before appropriate Bench."

In pursuance of the above order this appeal has been listed before this Division Bench for hearing today.

Learned A.G.A. submitted before us that only those criminal appeals in which the orders for death sentence or life imprisonment have been passed are cognizable by a Division Bench and since in the present case the order of imprisonment of 12 years only has been passed, it is not cognizable by a Division Bench and this appeal is within the jurisdiction of Hon''ble Single Judge.

Rule 2 of ChapterV of the Allahabad High Court Rules (hereinafter referred to as Rules) provides jurisdiction of a Single Judge. Its relevant portions are as under :

Jurisdiction of a Single Judge : Except as provided by these Rules or other law the following cases shall be heard and disposed of by a Judge sitting alone namely :

(vii) a criminal appeal, application or reference except

(a) an appeal or reference in a case in which a sentence of death or imprisonment for the life has been passed;

(b) an appeal under section 378 of the Code of Criminal Procedure ,1973 from an order of acquittal in respect of an offence for which the maximum punishment is either life imprisonment or death;

(c) ..........

(d) a case in which notice has been issued under section 401 of the Code of Criminal Procedure, 1973 to an accused person to appear and show cause why his sentence should not be enhanced;

(e) .........

(f) an application to which Chapter XXI, Part IV applies;

(viii) a case coming before the Court in the exercise of its ordinary or extraordinary original criminal jurisdiction :

(ix) an appeal or revision from an order passed under sections 340, 341 or 343 of the Code of Criminal Procedure, 1973 :

Provided that

(a) the Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges by a Judge sitting alone......"

It is thus, clear that under Clause vii(a) of the above Rule, a Single Judge of the Court has jurisdiction to hear all criminal appeals except those appeals in which a sentence of death or imprisonment for the life has been passed. In this case neither an order for death sentence nor imprisonment for life has been passed and the sentence awarded is of 12 years imprisonment only. Hence the matter is within jurisdiction of Hon''ble Single Judge, and with due deference to the Hon''ble Single Judge''s above observation, it is pointed out that this appeal is within the jurisdiction of Hon''ble Single Judge.

In Criminal Appeal No. 1382/2005, a Bench consisting of Hon''ble; M.C. Jain and Hon''ble K.K. Misra, JJ. passed an order on 7.9.2005 holding that the appeal filed against the conviction order under the N.D.P.S. Act awarding sentence of 13 years'' R.I. with fine was cognizable by Hon''ble Single Judge. In Criminal Appeal No. 4270/2002 another Division Bench of this Court comprising of Hon''ble K.K. Misra and Hon''ble Mukteshar Prasad. JJ., have held vide order dated 7.3.2006 that an appeal against the order awarding sentence of 20 years'' imprisonment was also cognizable by Hon''ble Single Judge as no order for life imprisonment was passed in I the case.

Under proviso (a) of the quoted above, the Hon''ble Chief Justice may direct that any case which may be heard by a Single Judge, shall be heard by a Division Bench of two or more Judges and vice versa, but for that purpose the order of Hon''ble the Chief Justice is required, and in the present case there is no such order of Hon''ble the Chief Justice.

In view of the aforesaid provisions in the High Court Rules as well as in the above judgements, let this appeal be laid before the Hon''ble Single Judge dealing with criminal appeals for suitable orders in the matter.

Orders Accordingly.