Case Note & Summary
The petitioners were convicted by the Metropolitan Magistrate for an offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881, based on dishonour of two cheques of Rs.14,35,000. The first and second petitioners were sentenced to simple imprisonment till rising of the court, and all petitioners were jointly and severally directed to pay compensation of Rs.15,00,000 to the complainant under Section 357(3) of the Code of Criminal Procedure, 1973 (CrPC), with default sentence of six months for the first and second petitioners. The petitioners appealed to the Sessions Court, but the Additional Sessions Judge dismissed the appeal in limine on 24th August 2011, holding that the appeal was not maintainable under Section 376(b) CrPC, which bars appeals against sentences of imprisonment till rising of court. The petitioners then filed a criminal writ petition in the Bombay High Court challenging the constitutional validity of Section 376(b) and (c) CrPC as ultra vires Part III of the Constitution, and seeking restoration of the appeal. The court heard submissions only on the constitutional challenge. The petitioners argued that the right to appeal is a fundamental right under Article 21 and that the classification under Section 376 is arbitrary and violative of Article 14. The state and respondents argued that the right to appeal is a statutory right and the classification is reasonable. The court held that the right to appeal is not a fundamental right but a creature of statute. The classification based on the nature and quantum of sentence is reasonable and has a rational nexus with the object of avoiding frivolous appeals. The court also noted that an order of compensation under Section 357(3) CrPC is not a sentence, but did not decide that issue. The court upheld the constitutional validity of Section 376(b) and (c) CrPC and dismissed the petition.
Headnote
A) Criminal Procedure - Right to Appeal - Section 376(b) and (c) CrPC - Constitutionality - The petitioners challenged the constitutional validity of Section 376(b) and (c) CrPC which bar appeals against sentences of imprisonment till rising of court and compensation orders under Section 357(3) CrPC. The court held that the right to appeal is a creature of statute and not a fundamental right. The classification based on the nature and quantum of sentence is reasonable and has a rational nexus with the object of avoiding frivolous appeals. The provisions do not violate Article 14 or Article 21 of the Constitution. (Paras 1-10) B) Criminal Procedure - Compensation - Section 357(3) CrPC - Not a Sentence - The court held that an order directing payment of compensation under Section 357(3) CrPC is not a sentence but a direction in addition to the sentence. Therefore, the bar under Section 376(c) CrPC which applies to appeals against sentences does not apply to compensation orders. However, the court did not decide this issue as it was not necessary for the disposal of the petition. (Paras 1-10)
Issue of Consideration
Whether Section 376(b) and (c) of the Code of Criminal Procedure, 1973 are unconstitutional and ultra vires Part III of the Constitution of India?
Final Decision
The court upheld the constitutional validity of Section 376(b) and (c) CrPC and dismissed the petition. The court held that the right to appeal is not a fundamental right and the classification is reasonable.
Law Points
- Section 376(b) and (c) CrPC are constitutionally valid
- no violation of Article 14 or Article 21
- right to appeal is not a fundamental right
- classification based on sentence is reasonable
- compensation under Section 357(3) CrPC is not a sentence
