IMPORTANT POINT
The appeal must be filed in the Sessions Court when the substantive sentence exceeds seven years, even if the sentences are ordered to run concurrently.

ORDER :

C.S.SUDHA, J.

This unnumbered criminal appeal has come before me pursuant to a filing defect noted by the Registry. The appeal is against the judgment dated 21/08/2024 in S.C.No.2593/2022 of the Assistant Sessions Judge, Neyyattinkara. The accused was found guilty for the offences punishable under Section 324 and 308 IPC and hence sentenced to undergo simple imprisonment for three years and seven years for the offences punishable under Section 324 and 308 IPC respectively. The substantive sentences have been directed to run concurrently.

2. When the appeal was filed, a clarification was sought by the Registry as to whether this Court is the proper forum to file the appeal to which the counsel answered that the appellant had initially filed an appeal before the Court of Session, Thiruvananthapuram as he bona fide believed the court to be the proper forum. However, the appeal was returned for filing before the proper court and hence the appeal before this Court.

3. The Registry notes that as per Section 415(2) of B.N.S.S, the substantive sentence of imprisonment is only seven years as the sentences have been directed to run concurrently and hence the proper forum is the Court of Session.

4. The learned counsel for the appellant submitted that the total period of imprisonment as per the impugned judgment is ten years. It was only because the trial court exercised its discretion and ordered the sentence to run concurrently, in effect, the appellant would have to suffer imprisonment for seven years only. But the sentence of imprisonment passed against the appellant would still remain ten years. As the period of imprisonment awarded is more than seven years, as per Section 415(2) B.N.S.S (Section 374(2) Cr.P.C.) the appeal will only lie before this Court. Per contra, it was submitted by the learned public prosecutor that the proper forum is the Sessions Court in the light of Section 25(3) B.N.S.S. (Section 31(3) Cr.P.C.).

5. Heard Sri.D.Kishore, the learned counsel for the appellant and Smt.Sheeba Thomas, the learned Public Prosecutor.

6. As per Section 415(2) B.N.S.S. corresponding to Section 374(2) Cr.P.C., any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years has been passed against him or against any person convicted at the same trial, can appeal to the High Court. Therefore, only if the sentence of imprisonment awarded is more than seven years, the appeal will lie to this Court.

7. As per Section 25(1) B.N.S.S. when a person is convicted at one trial of two or more offences, the court may subject to the provisions of Section 9 of the B.N.S., 2023, sentence him for such offences, to the several punishments prescribed therefor which such court is competent to inflict and the court shall, considering the gravity of offences, order such punishments to run concurrently or consecutively. Therefore, it is the discretion of the court to order the punishments to run concurrently or consecutively. Now the question is, in what manner the punishments will have to be computed for the purpose of filing an appeal. Section 25(3) B.N.S.S. makes the position clear which says that for the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this Section shall be deemed to be a single sentence. The term 'concurrent' is conspicuously absent in Section 25(3). Therefore, as rightly pointed out by the learned public prosecutor, Section 25(3) makes it clear the manner in which the sentences will have to be computed for the purpose of filing an appeal.

8. In this case, the sentence passed by the Assistant Sessions Court has been directed to run concurrently and therefore the substantive sentence is only for a period of seven years and hence as provided under Section 415(2) Cr.P.C. it is the Court of Session concerned which is the proper forum in which the appeal has