Patna High Court – Orders
Jamindar Paswan vs The State Of Bihar on 27 January, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1386 of 2024
In
CRIMINAL APPEAL (SJ) No.3526 of 2024
Arising Out of PS. Case No.-150 Year-2019 Thana- TARIYANI CHOWK District- Sheohar
======================================================
1. Jamindar Paswan S/O Late Kaldhari Paswan R/O Village- Kopgadh, P.S-
Tariyani, Dist.- Sheohar.
2. Surendra Paswan S/O Jamindar Paswan R/O Village- Kopgadh, P.S-
Tariyani, Dist.- Sheohar.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellants : Mr. Arjun Prasad, Advocate
: Mr. Hans Lal Kumar, Advocate
For the State : Mr. Syed Ashfaque Ahmad, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
6 27-01-2025
Heard Mr. Arjun Prasad, learned Advocate for the
appellants assisted by learned Advocate Mr. Hans Lal Kumar
and Mr. Syed Ashfaque Ahmad, learned A.P.P for the
Respondent-State.
2. This appeal has been filed on behalf of the
appellants under Section 374(2) read with Section 389(1) of the
Code of Criminal Procedure, 1973 (in short ‘Code’) against the
judgment of conviction and order of sentence dated 22.05.2024
rendered by the learned Additional Sessions Judge-1st, Sheohar
in Sessions Trial No. 102 of 2019 arising out of Tariyani P.S.
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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Case No. 150 of 2019, whereby the appellants have been
convicted for the offences punishable under Sections 324 and 34
of Indian Penal Code (in short ‘IPC‘) and sentenced to undergo
rigorous imprisonment (in short ‘RI’) for a term of 02 (two)
years each and also fine of Rs. 5,000/- (Five Thousand) each
and, in default of payment of fine, the appellants shall have
further to undergo simple imprisonment (in short ‘SI’) for 01
(one) month each. However, learned trial court convicted the co-
accused Gajendra Paswan and sentenced him to suffer life
imprisonment and also fine of Rs. 10,000/- (Ten Thousand) for
the offences punishable under Sections 302/34 of IPC and, in
default of payment of fine, he will further sentenced to undergo
SI for six (06) months.
3. It is further submitted that as the appellants herein
have been sentenced to suffer RI for two years, they preferred
Criminal Appeal (SJ) No. 3526 of 2024. However, learned
Single Judge vide order dated 26.10.2024 observed that the
appeal which has been filed before the learned Single Judge is
not maintainable and thereafter liberty was given to the
appellants to take necessary steps to convert the said appeal as
an appeal before Division Bench within a stipulated time and
thereafter the said appeal (SJ) came to be disposed of as non-
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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maintainable upon conversion. It is further submitted that, in
fact, appellants had rightly filed the appeal as Criminal Appeal
(SJ) as the sentence imposed by the trial court is less than ten
years. Learned Advocate has referred to the Rules of the High
Court at Patna, 1916, Part-I, Chapter-II.
4. At this stage, learned Advocate submits that even
otherwise now the matter has been listed before the Division
Bench, this Court may consider the prayer for grant of bail. It
has been pointed out from the record that as the sentence
imposed by the trial court is less than three years, the trial court
granted provisional bail to the appellants herein for a period of
thirty days. Within the said period, the appellants have preferred
the Criminal Appeal before this Court and as on date the
appellants are on provisional bail. Learned Advocate, therefore,
urged that the provisional bail granted by the trial court be
confirmed and thereby the appellants be released on bail till
final disposal of the appeal.
5. On the other hand, learned A.P.P. for the
Respondent-State is not in a position to dispute the fact that the
trial court has imposed sentence of two years so far as the
present appellants are concerned and till date the State has not
preferred any appeal against the said judgment of conviction
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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and sentence imposed on the present appellants nor the
informant has filed any appeal under Section 372 of the Code.
6. In view of the aforesaid submission, we are of the
view that when the trial court has imposed sentence of two years
and then released the appellants on provisional bail, the said
order is required to be confirmed.
7. Accordingly, the provisional bail granted by the
learned trial court is confirmed.
8. At this stage, we would like to reproduce relevant
Rules of the High Court at Patna, 1916, Part-I, Chapter-II,
as under:-
[1. The following matters may be heard
and disposed of by a Single Judge:-
xxxxxxxxx
(x) Unless otherwise directed by Bench,
all applications shall be placed for
hearing before a Single Judge, except
cases which are admitted to hearing
before a Division Bench or referred to
hearing before a Division Bench by a
Single Judge at the time of admission or
hearing.]
xxxxxxxxx
[2. Matters which shall be listed before
the Division Bench
(a) An appeal or reference in a case in
which a sentence of death has been
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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(b) an appeal, revision or reference in
which a substantive sentence of more
than ten years’ imprisonment has been
passed:
(c) an appeal under Section 378 from an
order of acquittal relating to an offence
punishable with death or with
imprisonment for life or with
imprisonment of either description for
more than ten years and passed by a
court competent to pass such sentence:
(d) an appeal under Section 377 or a
case in which notice has been issued
under Section 401 to an accused to show
cause why the sentence should not be
enhanced;
(e) all applications under Articles 226 for
issuance of writs of habeas corpus and
for issuance of writs in cases of,
externment from one State to another;
deportation; validity of statutes and
public interest litigation,]
xxxxxxxxx
9. At this stage, we would like to observe that in the
present case, learned Single has observed, relying upon some
other order passed on 06.11.2018 in Criminal Appeal (SJ) No.
4152 of 2018 that the appeal in the present case is not
maintainable as Criminal Appeal (SJ). However, now Full
Bench of this Court has decided the similar issue in the case of
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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Md. Danish vs. The State of Bihar and allied matters reported
in 2025 (1) BLJ 63 The Full Bench of this Court has observed
in paragraph nos. 34, 42, 48, 53, 54 and 55 as under:-
“34. An appeal which normally is to be
decided by a Single Judge can also be
decided by a Division Bench comprising
two Judges.
42. It must not be lost sight of that a rule
laying down the powers of a Single Judge
is a rule of practice and procedure as to
the internal arrangement within the
Court for disposal of cases by a
particular number of Judges. If the rule
says that a case of a type has to be heard
by a Division Bench, it cannot be heard
by a Single Judge; but if a case which is
to be heard by a Single Judge, is finally
heard and disposed off by a Division
Bench, no party can complain of
usurpation or creation of a jurisdiction
not vested with the Division Bench.
48. If the two appeals were slated to be
listed before the Division Bench, it was in
the fitness of things that the other three
Cr. Appeals (SJ) were directed to be
listed before the Division Bench along
with the aforenoted Government Appeal
and the Appeal under Section 372 of the
Cr.P.C.
53. A hypothetical situation could be
assumed when in a Single Judge appeal,
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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allowed and in the Government Appeal
seeking enhancement of sentence, the
Division Bench agrees to and decides in
favour of the prosecution, thereby
directing for enhancement of sentence of
such appellant.
54. In order to avoid such a situation, the
rule of practice of this Court is that if in
several appeals arising out of one Trial
Court judgment, where some, on account
of the specific sentence imposed upon the
specific appellant, is to be listed before a
Division Bench, the other appeals with a
sentence up to ten years also be listed
along with those appeals before the
Division Bench.
55. We answer the reference, thus, that in
case some of the criminal appeals arsing
out of the same Trial Court judgment,
carrying a sentence of more than ten
years or a Government Appeal for
enhancement of sentence or an appeal
under Section 372 of the Cr.P.C. by the
victim is preferred before a Division
Bench in accordance with the rules, the
criminal appeals arising of the same
judgment with lesser sentence i.e. up to
ten years, would also be heard by the
Division Bench.”
10. From the aforesaid observation, it can be said that
if several appeals, arising out of one trial court judgment have
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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been filed, where on account of specific sentence imposed upon
the specific appellant, are to be listed before a Division Bench,
the other appeals with a sentence up to ten years also be listed
along with those appeals before the Division Bench. Further, in
case some of the criminal appeals arising out of the same trial
court judgment, carrying a sentence of more than ten years or a
Government Appeal for enhancement of sentence or an appeal
under Section 372 of Cr.P.C. by the victim is preferred before a
Division Bench in accordance with the rules, the criminal
appeals arising out of the same judgment with lesser sentence
i.e., up to ten years, would also be heard by the Division Bench.
11. Thus, in view of the aforesaid decision rendered
by the Full Bench of this Court, we are of the view that when
the sentence up to ten years has been imposed by the trial court,
the convict can file appeal as Criminal Appeal (SJ) before
learned Single Judge and such type of appeal is maintainable
before the Single Judge. However, as a matter of practice,
learned Single Judge can direct the Office to tag the said
Criminal Appeal (SJ) with Criminal Appeal filed by co-convict
where the sentence of more than ten years has been imposed by
the trial court by the same trial court judgment and thereafter
such Criminal Appeal (SJ) can be heard and decided by the
Patna High Court CR. APP (DB) No.1386 of 2024(6) dt.27-01-2025
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Division Bench. Thus, we are of the view that such appeal
before the learned Single Judge as Criminal Appeal (SJ) is
maintainable, but it is to be tagged with Criminal Appeal (DB)
filed by co-convict where sentence imposed is more than ten
years or Government Appeal or appeal filed under Section 372
of Cr.P.C. by the victim arising out of the same judgment. Thus,
it is not open for the Office to raise an objection that Criminal
Appeal before learned Single Judge, where the sentence
imposed is less than ten years is not maintainable.
(Vipul M. Pancholi, J)
( Alok Kumar Pandey, J)
GKS/-
U T