Mumbai: In a significant ruling, the Bombay High Court has held that an accused does not have an inherent right of appeal against his conviction and the same has to be conferred by a statute.
"The legislature can confer the said right or can make available the said right conditionally. It (legislature) may withdraw the said right by amending the statute which confers the right of appeal", Justice Abhay Oka and Justice Sadhana Jadhav observed in a recent judgement.
The judges gave the ruling on a petition challenging a provision in Criminal Procedure Code (CrPc), which restricts the right to appeal in small cases in which the punishment is less than the stipulated period of imprisonment or amount of fine.
The petition, filed by three convicts, sought a direction from the High Court to declare 376 (b) and (c) of CrPc as unconstitutional and ultravires the Constitution as it takes away the right to appeal.
It also prayed for quashing an order of a sessions court which ruled that such an appeal was not maintainable in view of clause 376 (b).
Two petitioners were asked to suffer imprisonment for a day until the rising of the court in a cheque bouncing case, while all the three were ordered to pay compensation of Rs 15 lakh to the complainant within three months.
They filed an appeal in a sessions court which rejected it in view of clause (b) of 376. Against this, they filed a petition in the High Court.
The judges observed that there is no inherent right of appeal. If statute creates a right of appeal against an order of conviction, any Act which prevents an accused from preferring an Appeal may be in violation of Article 21 of the Constitution.
But a legislation cannot be struck down on the ground that there is a violation of Article 21 as a result of failure to provide for an Appeal against a conviction.
Thus, there is no merit in the prayer that clauses (b) and (c) of 376 of CrPC are illegal, the judges said while upholding their validity and legality.
The petitioners argued that the right to appeal against an order of conviction is conferred by Section 374 of CrPc. They, however, said by virtue of section 376, the said right is curtailed and by the said provision, unreasonable, arbitrary and discriminative conditions have been imposed based only on territorial jurisdiction of a court.
Their counsel Ashutosh Kumbhkoni submitted that the right to appeal is made restricted or conditional on whether the magistrate, who passed the order of conviction was presiding over a court in a metropolitan city or not.
He argued that such distinction made for taking away right of appeal in case of certain orders of conviction passed by a metropolitan magistrate was unconstitutional.
Kumbhkoni said by virtue of section 376(b), the right of an appeal against orders passed by metropolitan magistrate of imposing a sentence of imprisonment for a term not exceeding three months or of fine not exceeding Rs 200 or both such imprisonment and fine, has been taken away.
He urged that such discrimination and restriction brought about by the impugned provision is violative of the Petitioners` fundamental rights under the Constitution. If a right to appeal is available to a citizen convicted in a non metropolitan area, then same right by law, must be made available to a citizen in a metropolitan area also, he argued.
Kumbhkoni submitted that several other consequences follow from a conviction. Not only that the person`s liberty taken away, but the conviction renders a stigma on the convict. He submitted that the right to life under Article 21 of the Constitution is wide enough to cover the right of a convict to file an Appeal against an order of conviction.
The petitioners submitted that the right to file an appeal against an order of conviction is a fundamental right guaranteed under the Constitution. Such right is inherent in Article 21 and cannot be taken away or conditioned or in any manner scuttled or impaired by any provision of law.
Additional Solicitor General Darius Khambata argued that there is no vested right of an Appeal and a right of Appeal is always created by a statute. He said it is for the Legislature to decide whether right to Appeal should be conditional or unconditional.