1. The appellant herein has brought into question direction in the judgment dated 02.05.2012 in S.C.No.170/2010 on the file of Judge, Fast Track Court, Madhugiri imposing penalty on him for the alleged insult to the trial Judge during deposition in evidence.

2. The appeal filed is under Section 374(2) of the Cr.P.C.

3. A question arose as to whether the appeal is maintainable under Section 374(2) of the Cr.P.C. when the appellant was neither arraigned nor tried nor has been convicted by any judicial order.

4. The learned counsel would submit the order impugned imposes upon him “penalty” by way of punishment. Therefore it is deemed conviction and hence, the appeal under Section 374(2) of the Cr.P.C. is maintainable. Thus, the test would be to see the nature of the order passed. The impugned order reveals thus:

“The I.O. has committed intentional insult to the trial judge during his evidence, while sitting in the judicial proceeding, and therefore, he is liable to pay fine under Section 228 of IPC, for the derogatory words used by him against the judicial officer, such as ‘IT IS UNBECOMING OF A JUDGE’ and that the court has got PREJUDICE towards the I.O. Infact, it is unbecoming of the I.O. and he is liable to pay penalty of Rs.1,000-00 for each of the above said insulting and blasphemous words, i.e., total amount of Rs.2,000-00, and if he failed to make payment of the penalty to the Government within 30 days, he shall undergo simple imprisonment for two months.

The office Sheristear is directed to register a separate Criminal Misc. case under Section 228 of the IPC, to compel the C.P.I., Satyanarayana Kudur, to comply with the penalty, if he failed to make payment within 30 days.”

5. From the phraseology and the language used in the impugned order, it is evident that the learned Sessions Judge during the trial of an accused for offences punishable under the provisions of the IPC has taken note of the conduct of the appellant who was a witness to impose the penalty. The impugned order spells out learned trial Judge has imposed penalty upon him for act which is brought within the mischief of Section 228 of the IPC.

6. Section 228 of the IPC defines about the offence punishable by the Court. It reads:

“Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both.”

7. Therefore, indulging in intentional insult or interruption to a public servant while sitting in a judicial proceeding is made an offence defined the Indian Penal Code to be visited with penal consequences and punishment is also prescribed. It therefore implies that to impose punishment upon a person for an offence, he has to be subjected to trial as provided by the Code of Criminal Procedure. In the instant case, the order impugned is not in a trial conducted against the appellant but is an order based on observation made during the course of judicial proceedings while conducting trial against another individual. The appellant’s conviction is in a proceeding wherein he was neither arraigned, charged or subjected to trial. The question is whether such an order is appealable. The test to be applied is to refer to the provisions of Section 372 of Cr.P.C. which provides for appeal against conviction, Section 372 envisages:

“No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.”

8. It spells out an appeal against any judgment or order is permissible only as provided by the Code of Criminal Procedure. The right of appeal is embodied under Section 374 and 378 of the Cr.P.C. A convicted person has a right of appeal under Section 374 subject to provisions of section 375 and 376. Section 374 leaves no scope for doubt