Appeal Against Conviction By Sessions Court Would Lie Before Division Bench Of HC If Sentence Running Consecutively Exceeds 10 Yrs: J&K&L High Court

Justice Ali Mohammad Magrey & Mohd. Akram Chowdhary further made it clear that where the sentence passed in a single judgment for multiple offences is to run consecutively, such that it exceeds 10 years of incarceration in aggregate, the appeal would lie before a division bench.

The Appellant herein had challenged listing of his criminal appeal against conviction before a Division Bench.

The High Court however observed,

"The plain meaning of word 'consecutively' enjoins that the sentences of imprisonment for various offences have to run successively, one after another and not in parallel/ simultaneous/ concurrent to each other. Going by this interpretation, the sentences of imprisonment awarded to the Appellant in the instant case, if read consecutively as held by the learned trial Court, safely amount to more than ten years, viz. 16 years, passed in a single Sessions trial."

On a conjoint reading of Rule 29(9) of J&K High Court Rules 1999, Section 35 (3) and Section 410 of erstwhile Ranbir Penal Code, the Court concluded:

(i) any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court;

(ii) a criminal appeal shall lie to the single Bench of the High Court in a case in which a sentence of imprisonment for a term not exceeding ten years has been passed; and

(iii) for purpose of appeal, the aggregate of consecutive sentences passed in case of convictions for several offences at one trial shall be deemed to be a single sentence.

"Admittedly, the Code, with the application of Section 410, only provides a remedy of appeal against the conviction where the sentence is awarded by the Sessions Court before the High Court and does not prescribe whether such an appeal will lie before the Single Bench or Division Bench. In these circumstances, this aspect is required to be regulated by the mandate of the Rules of 1999 which, in terms of Sub-Rule 9(b) of Rule 29, in no uncertain terms, stipulates that an appeal in a case in which a sentence of imprisonment for a term not exceeding ten years has been passed is to be heard and decided by a Judge sitting alone. Applying the above legal position to the facts of the case in hand, the primary and main governing factor relating to the jurisdiction to hear the instant appeal either by the Single Bench or the Division Bench revolves around the criterion as to whether the term of sentence of imprisonment awarded to the Appellant herein by the learned trial Court exceeds the limit of ten years or not."

In view of the above terms, the court directed the petition to be listed before the division bench.

Case Title: Mushtaq Ahmad Peer v State of Jammu and Kashmir

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