NAGENDRA PRASAD SINGH, J.

1. This appeal has been placed before a Full Bench at the admission stage to decide the question of maintainability of the appeal before this Court. There are five appellants, who have challenged the legality of the order of conviction and sentence passed against them by the First Assistant Sessions Judge, Aurangabad, by his judgment, dated the 27th January, 1976. Appellant No.1 has been convicted under Sec.307 of the Indian Penal Code (hereinafter referred to as the Code) and sentenced to undergo rigorous imprisonment for seven years. The remaining appellants have been convicted under Sec.307, read with Sec.149, of the Code and have been sentenced to undergo rigorous imprisonment for four years each. Appellant No.1 has been further convicted under Sec.27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years under that count. Appellants 1 and 3 to a have been further convicted under Sec.148 of the Code and sentenced to undergo rigorous imprisonment for nine months each. Appellant No.2 has been convicted also under Sec.147 of the Code and sentenced to undergo rigorous imprisonment for six months. The sentences have been directed to run concurrently.

2. The Stamp Reporter raised in objection in respect of the maintainability of the appeal before this Court. Under Sec.374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code), an appeal lies to this Court against a judgment of conviction, if the trial is held by a Sessions Judge or an Additional Sessions Judge, or against an order of conviction passed by any other court "in which a sentence of imprisonment for more than seven years has been passed". As the sentence passed against appellant No.1 is only for seven years, the appeal should have been filed before the Court of Session under Sec.374(3) of the New Code.

3. This appeal was first listed for admission before a learned single Judge of this Court, along with the aforesaid stamp report, who, by his order, dated the 9th March, 1976, referred the matter to a Division Bench for decision on the question of the maintainability of the appeal before this Court, in view of the fact that there were conflicting views on this point. The appeal was then placed before a Bench of this Court, which, after hearing the learned counsel appearing for the parties, passed an order saying that the important questions involved in the appeal were of far-reaching effect, and, as such, it was a fit case which should be placed before a Full Bench.

4. Learned counsel for the appellants, in support of his stand that the appeal is maintainable before this Court, has, however, not questioned the position that, if the provisions of the New Code are applicable, this appeal ought to have been filed before the Sessions Judge, Gaya. But, according to him, the provisions of the New Code are not applicable to the appeal in question and it has to be entertained and disposed of in accordance with the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code). According to learned counsel, the right of appeal is a vested right which accrues to an accused person no sooner a criminal proceeding is initiated against him, and that right is not affected by repeal of an Act or by enactment of a new Code; that right is all the more preserved where the trial was proceeded and concluded in accordance with the Old Code, although on the date of the conviction the Old Code had been repealed. If this argument is to be accepted, the appeal is maintainable under Sec. 408(b) of the Old Code. Under that section any person convicted and sentenced to imprisonment for a term exceeding four years could have filed an appeal to this Court.

5. The fact that on the date the New Code came into force, the trial was pending is not in dispute. In view of Sec. 484(2) of the New Code, so far as the question of applicability of the Old Code at the stage of trial is concerned, th