*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
+CRIMINAL APPEAL No.367 of 2006
% 23-11-2011
#m/S.Pioneer Castings and another
….Appellants
Vs.
$ Employees State Insurance Corporation & another
…. Respondents
!Counsel for the Petitioner : Sri S.Nanda
Counsel for the 1st Respondent: Sri B.G.Ravindra Reddy
Counsel for the 2nd respondent: Public Prosecutor
<Gist :
>Head Note:
? Cases referred:
IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH
AT HYDERABAD
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRIMINAL APPEAL No.367 of 2006
DATE: 23.11.2011
Between:
M/s.Pioneer Castings and another
…… Appellants
And
Employees State Insurance Corporation & another
…..Respondents
HONOURABLE SRI JUSTICE SAMUDRALA
GOVINDARAJULU
CRIMINAL APPEAL No.367 of 2006
JUDGMENT :
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 appeal 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.
_______________________________
SAMUDRALA GOVINDARAJULU, J
November 23, 2011
NOTE: L.R. Copy to be marked
(B/o)ksh
+CRIMINAL APPEAL No.367 of 2006
% 23-11-2011
#m/S.Pioneer Castings and another
….Appellants
Vs.
$ Employees State Insurance Corporation & another
…. Respondents
!Counsel for the Petitioner : Sri S.Nanda
Counsel for the 1st Respondent: Sri B.G.Ravindra Reddy
Counsel for the 2nd respondent: Public Prosecutor
<Gist :
>Head Note:
? Cases referred:
IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH
AT HYDERABAD
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRIMINAL APPEAL No.367 of 2006
DATE: 23.11.2011
Between:
M/s.Pioneer Castings and another
…… Appellants
And
Employees State Insurance Corporation & another
…..Respondents
HONOURABLE SRI JUSTICE SAMUDRALA
GOVINDARAJULU
CRIMINAL APPEAL No.367 of 2006
JUDGMENT :
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 appeal 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.
_______________________________
SAMUDRALA GOVINDARAJULU, J
November 23, 2011
NOTE: L.R. Copy to be marked
(B/o)ksh
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