https://indiankanoon.org/doc/79020578/

The Hon’ble Supreme Court and this Court have already in a number of cases have held that the appeal is a continuation of trial and therefore, in that view of the matter, this appeal is also arising one out of the trial. He would rely upon the judgment of the Hon’ble Supreme Court of India in Dilip S. Dahanukar vs Kotak Mahindra Co. Ltd. & Another1 and it is useful to quote relevant portion of the said judgment, which is reproduced hereunder:

”An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impared, nor it can be subjected to any condition.

1 (2007) 6 SCC 528 https://www.mhc.tn.gov.in/judis  Crl.A.SR.No.27630 of 2022 We may take notice of some of the decisions operating in the filed in this behalf.

In Garikapati Veeraya vs N.Subbiah Choudhry & Ors.2, this Court opined:

”(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.

2 AIR 1957 SCR 540 https://www.mhc.tn.gov.in/judis  Crl.A.SR.No.27630 of 2022

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, it is so provides expressly or by necessary intendment and not otherwise.” This Court, in Babu Rajirao Shinde vs. The State of Maharashtra3, observed that a convicted person must be held to be at least entitled to one appeal as a substantial right.

Yet again in Siddanna Apparao Patil vs. The State of 3 (1971) 3 SCC 337 https://www.mhc.tn.gov.in/judis  Crl.A.SR.No.27630 of 2022 Maharashtra4, this Court held:

”The right to prefer an appeal from sentence of Court of Sessions is conferred by Section 410 of the Criminal Procedure Code. The right to appeal is one both on a matter of fact and a matter of law. It is only in cases where there is a trial by jury that the right to appeal is under Section 418 confined only to a matter of law.” ” Therefore, relying upon the said passages, learned counsel would submit that even the Hon’ble Supreme Court has held that the accused should be having the right of at least one appeal and therefore, the present appeal filed by him should be entertained by the registry.

5. I am afraid that I could agree with learned counsel for the petitioner. Even though the Hon’ble Supreme Court of India as well as this Court has held that an appeal is a continuation of proceedings or a continuation of trial, it is held so in the context of the facts of those judgments. As far as the remedies of appeal and revision are concerned, the Hon’ble Supreme Court of India in the recent judgment in Parvinder 4 (1970) 1 SCC 547 https://www.mhc.tn.gov.in/judis  Crl.A.SR.No.27630 of 2022 Kansal vs NCT of Delhi and another5, has categorically held that the provisions of the code of criminal procedure should be read as such and can neither be enlarged nor be restricted by the Courts.