The right of appeal under the old Code is preserved for cases pending at the commencement of the new Code, and the right to file an appeal is a vested right.

1. The petitioners are the accused in C. C. 23 of 1974 on the file of the Judicial Magistrate, I Class Ettumanoor. They were convicted by that Court for offences punishable under S.143, 447, and 379 read with S.149 IPC. For the offences under S.143 and 447 IPC., they were sentenced respectively to pay a fine of Rs 25/-each under each count and in default to undergo simple imprisonment for 15 days. For the offence under S.379 IPC., they were sentenced to pay a fine of Rs 50/- each and in default to undergo simple imprisonment for one month. Aggrieved by the above conviction and sentence, the petitioners filed Crl. A 119 of 1974 before the Sessions Judge, Kottayam. They also filed Crl. R. P 25 of 1974 for the identical relief probably not being sure whether an appeal would lie. The learned Sessions Judge dismissed the appeal as not maintainable on the ground that the sentence for each offence was Rs. 50/-. The Criminal Revision Petition was disposed of on the merits and it was dismissed. The present petition is filed by the petitioners under S.401 and also under S.482 of the Code of Crl. Procedure for setting aside the order dismissing the appeal.

2. The main contention put forward on behalf of the petitioner is that an appeal lies from the conviction and sentence and, therefore, the dismissal of the appeal was wrong.

3. The revision petition and the appeal were disposed of after the coming into force of the new Code of Criminal Procedure, Act 2 of 1974 Under S.376 of the new Code, no appeal lies when the sentence of fine not exceeding Rs. 100/-is passed by a Magistrate of the First Class. In the instant case, the total amount by way of fine comes only to Rs 100/-. Therefore, if it is the new Code that applies, the dismissal of the appeal is correct. But the case wherein the petitioners were convicted was charge-sheeted before the Judicial First Class Magistrate prior to the commencement of the new Code and it was pending trial when that Code came into force. Therefore, under S.484 (2) (a) of the new Code the trial had to be proceeded with under the old Code as if the new Code had not come into force. S 404 of the old Code deals with right of appeal, and no appeal would lie except as provided in that section. It is an accepted doctrine that the right to file an appeal is a vested right. (See Garikapati v Subbiah Choudhry (AIR 1957 S.C. 540)) The vested right can be taken away by a subsequent legislation only if there are clear indications therein to that effect. S 484 does not contain any provision which affects the right of appeal in cases pending at the commencement of the new Code Therefore, the right of appeal conferred on the petitioners under S.408 of the old Code remained in tact.

4. The learned Sessions Judge proceeded on the footing that no appeal lies in the instant case because the fine is only Rs. 50/-. It appears that the court overlooked the provisions of S 35 of the old Code which corresponds to S.31 of the new Code of Criminal Procedure. Sub-s. 3 of S.35 reads:

"For the purpose of appeal, the aggregate of consecutive sentences passed under the section in case of convictions for several offences at one trial shall be deemed to be a single sentence:"

The sentences of fine under the different heads in the instant case fall under the category of consecutive sentences. The aggregate sentence for the purpose of appeal is, therefore, fine of one hundred rupees. Under S.413, (old) an accused person has the right of appeal in all cases disposed of by a Magistrate of the First Class where the sentence of fine exceeds fifty rupees. It follows that an appeal lies against the sentences passed against the petitioners.

5. A similar question arose in the decision in re Godala Sanyasi (AIR. 1948 Madras 251). I he accused in that case was sentenced to fine under two different heads the aggregate of fine exceeding Rs. 50/-. It was held that S 413 did not affect the accused's right of appeal under S 408.

6. The learned Sessions