Accused Has No Fundamental/Statutory Right To Appeal Against Conviction Eo Instanti: Bombay High Court

The Bombay High Court held that an accused has no fundamental or statutory right to prefer an appeal against an order holding him guilty of offence eo instanti.

After the court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the judgment becomes complete and can be appealed against under Section 374 of the Code of Criminal Procedure, the Division Bench comprising Justices S.S. Shinde and N. J. Jamadar observed.

The issue raised in this case was whether the accused has a right to have the copy of the judgment the moment the judgment of conviction is pronounced and a further right to assail the judgment of conviction eo instanti? It was contended that, at the stage of delivery of judgment itself, a right to prefer an appeal there-against arises to the accused. According to the accused, he has a fundamental right to prefer an appeal against the very order of conviction, as distinct from the judgment of conviction and sentence.xThe issue raised in this case was whether the accused has a right to have the copy of the judgment the moment the judgment of conviction is pronounced and a further right to assail the judgment of conviction eo instanti? It was contended that, at the stage of delivery of judgment itself, a right to prefer an appeal there-against arises to the accused. According to the accused, he has a fundamental right to prefer an appeal against the very order of conviction, as distinct from the judgment of conviction and sentence.

The court noted the following provisions:

(a)  Section 235(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the questions of sentence, and then pass sentence on him according to law.

(b) Clause 'c' of Sub Section (1) of Section 354 indicates that the Court should specify the offence of which and Section of the particular enactment under which the accused is convicted and the punishment to which he is sentenced.

(c) Sub Section (1) of Section 363 provides that the copy of the judgment shall immediately after the pronouncement of judgment be given to the accused free of cost, when the accused is sentenced to imprisonment. 

Finding and sentence form an inseparable part of judgment of conviction

The court said that the conviction and sentence or consequential orders form an integral part of the judgment whereby a person is convicted and that a judgment cannot be said to be complete unless the punishment to which the accused is sentenced is set out therein. Thus, what is appelable under Section 374 is a complete judgment of conviction and not a mere finding of holding an accused guilty of a particular offence, the court said.

The bench also noted that Section 386 of the Code provides that in a appeal from conviction the appellate Court may (i) reverse the fnding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the fnding alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. The aforesaid text of Section 386 makes it crystal clear that the finding and sentence form an inseparable part of judgment of conviction, it said.

"Had it been the intention of the legislature that a copy of the judgment be made available to the accused the moment the judgment of conviction, meaning thereby holding the accused guilty of a particular offence, is pronounced, the legislature would not have used in Sub Section (4) of Section 353 of the Code the expression that 'the copy thereof shall be made available for the perusal of the parties or their pleaders free of costs. In view of the aforesaid provisions contained in the Code, we are afraid to accede to the submission on behalf of the petitioner that there is either a constitutional or statutory right to prefer an appeal against the order holding the person guilty of offence. ", the court said.

Section 235 do not imply that there is a distinct judgment of conviction followed by the judgment of sentence.

The court also observed that provisions contained in Section 235 of the Code cannot be stretched to hold that there is an independent right to assail the findings recorded by the learned Sessions Judge, apart from right to prefer an appeal against the order of conviction and sentence. The court observed thus:

14. In our view the reliance sought to be placed on the aforesaid provisions does not advance the cause of the petitioner. On a proper construction of the said provision, especially section (2)of Section 235 of the Code, it becomes abundantly clear that an important and, in a sense, inviolable right of the accused to be heard on the point of sentence is secured thereby. The said provision, in our view, cannot be construed in such a fashion as to provide right to the accused to prefer an appeal against the order of conviction only. The observations of the Supreme Court in the case of Santa Singh (supra) especially the portion extracted above that 'the Court must, in the first instance, deliver the judgment convicting or acquitting the accused', do not imply that there is a distinct judgment of conviction followed by the judgment of sentence.

Clear and present risk of destroying the integrity of trial.

While dismissing the petition, the court observed that if in every matter, where the accused is held guilty of a particular offence, he has a right to prefer an appeal against the said finding of holding him guilty, then there is a clear and present risk of destroying the integrity of trial.

"It would entail a two stage consideration by the appellate Court. First, after the accused is held guilty of the offence. Second, consequent to imposition of sentence on the accused. Such proposition cannot be countenanced, especially in the absence of a statutory prescription.", the court said.

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