IMPORTANT POINT
There is no inherent right of appeal.

A.S. Oka, J.—The Petitioners were arraigned as Accused in a complaint filed by the second Respondent for the offence punishable under Section 138 read with Section 141 Negotiable Instruments Act, 1881. The complaint was based on dishonour of two cheques of the aggregate amount of Rs. 14,35,000. The learned Metropolitan Magistrate convicted the Petitioners. The first and the second Petitioners (second and third Accused) were sentenced to suffer simple imprisonment till rising of the Court. The Petitioners (first to third Accused) were jointly and severally directed to pay compensation of Rs.15,00,000 to the Complainant under Section 357(3) of the Code of Criminal Procedure, 1973 ( hereinafter referred to as “the said Code”) within a period of three months from the date of judgment. In case of the default of payment of compensation, the first and the second Petitioners were sentenced to suffer simple imprisonment for six months. A criminal Appeal was preferred by the Petitioners before the Sessions Court. By order dated 24th August, 2011, the learned Additional Sessions Judge dismissed the Appeal in limine in view of Clause (b) of Section 376 of the said Code. The learned Judge held that the Appeal was not maintainable in view of Clause (b) of Section 376 of the said Code. Prayer (b) of this Petition reads thus:

“(b) that this Hon’ble Court be pleased to declare that Sub-sections (b) and (c) of Section 376 of the Code of Criminal Procedure, 1973 are unconstitutional and/or ultravires Part III of the Constitution of India.”

Prayer (b1) of this Petition is for quashing and setting aside the order dated 24th August, 2011 passed by the learned Additional Sessions Judge and for a direction to restore the Appeal to be heard in accordance with law. We must record here that the learned counsel appearing for the Petitioners, the learned counsel appearing for the second Respondent and the learned Additional Solicitor General of India have made submissions only as regards the prayer clause (b) of this Petition and, therefore, we are passing order confined to the prayer clause (b) of the Petition.

2. The learned counsel appearing for the Petitioners has made detailed submissions. The learned counsel appearing for the Petitioners submitted that the right to appeal against an order of conviction is conferred by Section 374 of the said Code. He, however, submitted that 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. He 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. It is submitted by the learned counsel appearing for the Petitioners that such distinction made for taking away right of appeal in case of certain orders of conviction passed by the learned Metropolitan Magistrate is unconstitutional and unsustainable.

3. The learned counsel appearing for the Petitioners submitted that by virtue of sub-clause against orders passed by the Metropolitan Magistrate of imposing a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees 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 Articles 14 and 21 of the Constitution of India. The learned counsel submitted that 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 as well.

4. The learned counsel for the Petitioner submitted that the right to prefer an appeal in cases of conviction is to be adjudged on a different touchstone than a right to appeal in cases of decrees and orders of civ