MUSHTAQ AHMAD PEER Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Continuation of hearing of this Criminal conviction appeal filed against the Judgment dated 25th of April, 2018 passed by the Court of learned Special Judge Anti-Corruption, Srinagar bearing file No. 41-B and FIR No. 24 of 2013 registered in Police Station Crime Branch Kashmir, Srinagar for the commission of offences punishable under Ss. 420, 406, 201, 120-B of the erstwhile Ranbir Penal Code (RPC) and Sec. 5(1)(d) read with 5 (2) of the Prevention of Corruption Act is objected by Mr Z. A. Qurashi, the learned Senior Counsel appearing on behalf of the Appellant in view of the application of Rule 29 of the Jammu and Kashmir High Court Rules, 1999 (for short 'the Rules of 1999'). To buttress this argument, Mr Qurashi submitted that the Registry, on the filing of the appeal, had rightly listed the same for consideration before the learned Single Judge of this Court in view of the mandate of Sec. 410 of the Criminal Procedure Code (hereafter referred to as 'the Code') inasmuch as the sentence of punishment awarded to the Appellant in all the offences is less than 10 years. It is pleaded that the learned Single Judge, however, without detailing out the reasons, has directed the Registry to list appeal before the Division Bench of this Court with reference to applicability of Rule 29 of the Rules of 1999. To further clarify the issue, Mr Qurashi has invited the attention of the Court to the Judgment and Order of sentence passed by the learned trial Court and submitted that the Appellant has been sentenced to undergo rigorous imprisonment for five years for the offence punishable under Sec. 5(1)(d) read with 5 (2) of the Prevention of Corruption Act; three years rigorous imprisonment for the commission of offence under Sec. 409 RPC; seven years rigorous imprisonment for the offence punishable under Sec. 420 RPC; one year rigorous imprisonment for the offence punishable under Sec. 120-B RPC, which amounts to a total of 16 years with further direction that all these sentences shall run consecutively. It is argued that since the learned trial Court has sentenced the Appellant to undergo rigorous imprisonment for several offences separately which have to run consecutively and that no order of sentence of imprisonment is for more than seven years, therefore, by application of Clause (b) of Sub-Rule 9 of Rule 29 of the Rules of 1999, the appeal, in this case, would lie to the Single Judge of this Court. The learned Senior Counsel has laid much emphasis on the language of the phrases 'sentence of imprisonment' and 'term exceeding ten years' in Clause (b) of Sub-Rule 9 of Rule 29 of the Rules of 1999 to demonstrate that the conviction appeal against the impugned Judgment of the trial Court where no sentence exceeds ten years is to be competently heard by the single Bench of this Court. The next contention of the learned Senior Counsel is that the right of appeal is available to the Appellant in terms of Sec. 410 of the Code inasmuch as the Appellant is a convict on a trial held by a Sessions Judge before the High Court.

(2.) In order to ensure proper interpretation of the Rule position on the subject of jurisdiction of the Bench of this Court to hear this appeal, as raised by the learned Senior Counsel for the Appellant, it had become necessary to seek assistance of the learned Advocate General. Accordingly, Mr D. C. Raina, the learned Advocate General appeared before the Court and submitted that the import and purport of Rule 29 of the Rules of 1999 is further to be read with the mandate of other provisions of the Rules and the law which are in force for the time being. In this behalf, the learned Advocate General has invited the attention of the Court to the language used in the said Rule 29 of the Rules of 1999 and submitted that the Rules of 1999 are only meant for regulating the judicial business of the High Court with reference to assignment of the matters primarily under the powers of Hon'ble the Chief Justice and that these Rules are framed to facilitate smooth working of the High Court. That apart, the learned Advocate General has also made reference to Sub-Sec. 3 of Sec. 35 of the Code to canvass that the sentence of imprisonment awarded to the Appellant in all the offences is to run consecutively as the learned trial Court has sentenced the convict/ Appellant for imprisonment at one trial and, therefore, the same is required to be treated as a single sentence amounting to more than ten years, 16 years to be precise.

(3.) In rebuttal, Mr Qurashi has averred that Sub-Sec. 3 of Sec. 35 of the Code has no application on the appeal which is admittedly filed under Sec. 410 of the Code. While explaining the argument, it is submitted that the application of Sub-Sec. 3 of Sec. 35 of the Code is only available to a convict whose sentence of imprisonment is running consecutively for several offences at one trial for the purpose of filing appeal. The learned Senior Advocate submitted that the right of appeal to the Appellant/ convict has accrued in terms of Sec. 410 of the Code to be filed before this Court, but Sec. 35 (3) does not, in any eventuality, determine the hearing of appeal by a single Judge or Division Bench of this Court. He further submitted that the application of Sec. 35(3) is only available in such cases where the conviction made in a criminal trial in which the accused/s are sentenced for more than one term with direction of sentence of imprisonment to run consecutively to be treated as a one single sentence in a single trial. To elaborate further, it is submitted that in terms of Ss. 411 to 413 of the Code, there is no right of appeal to a convict in petty and summary trial matters, unless the term of sentence of imprisonment exceeds the permissible limit. It is pleaded that the benefit of right of appeal is available to a convict when the sentence of imprisonment goes beyond one year and runs consecutively. In this context, Mr Qurashi has referred to and relied upon the Judgment rendered by the Calcutta High Court reported as 'AIR 1954 Calcutta 301'.