At, High Court of Andhra Pradesh
By, THE HONOURABLE MR. JUSTICE SAMUDRALA GOVINDARAJULU
For the Petitioners: Sri S. Nanda, Advocate. For the Respondents: R1, B.G. Ravindra Reddy, R2, Public Prosecutor.
This appeal is filed by the accused Nos.1 and 2/A-1 and A-2 against judgment dated 27.02.2006 passed by the Judicial Magistrate of the First Class to try offences under the Employees State Insurance Act (in short, the Act) –cum-Chairman, Industrial Tribunal-I Hyderabad in P.C. No.248 of 2002 by which A-1 and A-2 were convicted under Section 85(a) of the Act and were sentenced to simple imprisonment of six months and fine of Rs.5,000/- each; and were also convicted under Section 85(e) of the Act and were sentenced to fine of Rs.4,000/- each.
2) Both the counsel were heard at length on merits.But during the course of arguments, this Curt queried both the counsel as to maintainability of this appeal before this Court as against the impugned judgment.It is stated by the petitioners’ counsel that as per practice, this appeal is presented before this Court.The respondents’ counsel stated that as against orders passed by the lower Court, E.S.I Corporation is also filing appeals in this Court.No doubt, the Corporation is entitled to file appeals against judgment of the lower Court in this Court because the Corporation would be aggrieved in case the case ended in acquittal in the lower Court.As against an order of acquittal, appeal lies to this Court under Section 378(4) Cr.P.C.Since the Corporation is in the nature of complainant who filed the complaint in the lower Court against the accused, the Corporation is entitled to present an appeal against an order of acquittal passed by the lower Court, in view of Section 378(4) Cr.P.C.In case the complainant is construed as a victim, then the complainant is also entitled to file appeal before the Sessions Court in view of proviso to Section 372, which came to be introduced by amending Act 5 of 2009 which came into force with effect from 31.12.2009.In case both the remedies under proviso to Section 372 as well as Section 378(4) Cr.P.C are available to a complainant, then it is for the complainant to make out reasons for preferring to file appeal before the High Court under Section 378(4) Cr.P.C instead of approaching the Sessions Court under proviso to Section 372 Cr.P.C.
3) But, the present appeal is filed by the accused against an order of conviction passed by the lower Court as Judicial Magistrate of the First Class.Even though the lower Court is presided over by an officer of the rank of District Judge (either entry level or selection grade or super time scale), still the said officer while disposing of the criminal cases under the Act functions only as Judicial Magistrate of the First Class and exercises powers as such enumerated under the Code of Criminal Procedure, 1973 (in short, Cr.P.C).In such case, the appellate forum against an order of conviction passed by the lower Court has to be only in relation to capacity of the lower Court in which the impugned order of conviction was passed.
4) As against an order of conviction, appeals are preferred in accordance with Section 374 Cr.P.C.It reads as under:
374. Appeals from convictions:- (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions judge or an Additional Sessions judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 3 (1) 1. Subs. by Act 45 of 1978, Section 28, for the words "has been passed". [has been passed against him or against any other person convicted at the same trial] may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions judge or Magistrate of the first class, or of the second class, or
(b) sentenced under Section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
5) In this appeal, the appellants invoked Section 374(2) Cr.P.C for approaching this Court.Section 374(2) Cr.P.C provides for filing of appeal to the High Court, in case a person is convicted on a trial held by a Sessions Judge or an Additional Sessions Judge.The third contingency under Section 374(2) is that appeal lies to the High Court in case a person is convicted on a trial held by any other Court in which a sentence of imprisonment for more than 7 years has been passed against him or against any other person convicted at the same trial.In the case on hand, neither A-1 nor A-2 was convicted on a trial held by a Sessions Judge or an Additional Sessions Judge.They were also not convicted on a trial in which sentence of imprisonment for more than 7 years has been passed against either of them or any other person at the same trial.Therefore, no part of Section 374(2) Cr.P.C is available to the appellants in enable them to file this appeal against the order of conviction passed by the lower Court.
6) This Court is of the view that the appropriate provision applicable to the fact situation herein is Sub-Section (3) of Section 374 Cr.P.C.When the lower Court as Judicial Magistrate of the First Class for trial of offences under the Act passed the impugned order of conviction, remedy of the appellants is to invoke Section 374(3) Cr.P.C and to present this appeal before the Court of Session concerned.I find that this appeal is not liable to be entertained by this Court as it would not lie to this Court.It would be appropriate for this Court to order return of this memorandum of appea
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l herein to the appellants so that they would represent the same to the appropriate Court of Session, subject to the period of limitation. 7) The Registry is directed to return memorandum of appeal herein to the appellants (through their counsel) to enable them to represent the same before the appropriate Court of Session, subject to period of limitation. 8) The Registrar (Judicial) is directed to place this judgment before My Lord the Chief Justice for obtaining necessary orders for circulating the same to scrutiny officers of the Registry of this Court and also to all the Sessions Judges in the State.