A and B are tried by a court for the same offence. The trial court convicted accused A and passes a sentence which is appealable, while the court convicting the accused B passed a sentence which is not appealable. B wants to prefer the appeal. Advise B.

Question: A and B are tried by a court for the same offence. The trial court convicted accused A and passes a sentence which is appealable, while the court convicting the accused B passed a sentence which is not appealable. B wants to prefer the appeal. Advise B.

Find the answer only on Legal Bites. [A and B are tried by a court for the same offence. The trial court convicted accused A and passes a sentence which is appealable, while the court convicting the accused B passed a sentence which is not appealable. B wants to prefer the appeal. Advise B.]

Answer

B is advised to go in appeal as the appeal is maintainable under Section 380 of the Code of Criminal Procedure.

Section 380 of the code provides that when more persons than one are convicted in one trial, and an appealable order or judgment is passed in respect of any of such persons, all or any such persons convicted in such trial shall have a right to appeal. The section also states that the provisions under section 380 can be invoked even if there is any other provision in the Chapter of appeal inconsistent with this provision.

An accused person whose sentence is unappealable has a right of appeal under this section if his co-accused has been given an appealable sentence. But in Kali Kumar Mitra v. Emperor (1937) 1 Cal 123 where a co-accused was directed to be released on executing a bond under section 360, from which an appeal lay, it was held that the accused who was sentenced to six months imprisonment by a Metropolitan Magistrate had no right of appeal by virtue of section 374.

Applying the aforesaid provision to the present case at hand, it is clear that the judgment of conviction of B is not appealable yet his appeal is maintainable in view of the law laid down in section 380 of CrPC.

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