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1999 DIGILAW 530 (MP)

State of M. P. v. Babloo

1999-07-29

R.S.GARG

body1999
JUDGMENT By this appeal under section 377 read with section 454 of the Code of Criminal Procedure, the appellant-State prays that the sentences awarded against the respondent be enhanced and suitable directions be given for confiscation of the motor vehicle involved in the crime. The records would show that the accused pleaded guilty before the C.J.M. Sehore, who awarded sentence often days R.I. and imposed a fine of Rs. 2,000/- for commission of offence punishable under section 34 Excise Act and also imposed a fine of Rs. 3,000/- for offence committed under section 66/194 Motor Vehicle Act. The trial Court also directed that the seized liquor be given to Excise Department. Being aggrieved by the award of the sentence and non-passing of any order relating to the Motor Vehicle the State has filed this appeal. The records show that being aggrieved by the award of sentence, the accused took up the matter to the Session Judge, Sehore, who in Criminal Appeal No. 48/97, partly allowed the appeal, set aside the jail sentence but however maintained the amount of fine. Against the said judgment and order dated 14.7.98, the State has not preferred any appeal. Learned counsel for the respondent submits that the present appeal has become infructuous as the State did not choose to challenge the appellant judgment before this Court. On the other hand, Shri Ahluwalia, learned counsel for the State submits that irrespective of the final disposal of an appeal against conviction in any case, this Court is entitled to hear and dispose of on the merits an appeal for enhancement of sentence under section 377. Section 393 provides that notwithstanding the final disposal of an appeal against conviction in any case, the Appellate Court may hear and dispose of, on the merits an appeal for the enhancement of sentence under section 377, arising out of the same case. The words 'arising out of the same case' are the key words. Section 393 would be applicable to a contingency where being aggrieved by the conviction and award of sentence an accused prefers an appeal in the High Court and at the same time being aggrieved by the award of sentence, the State prefers an appeal for enhancement of sentence. The purpose for deciding the appeal for enhancement of merits is obvious. Section 393 would be applicable to a contingency where being aggrieved by the conviction and award of sentence an accused prefers an appeal in the High Court and at the same time being aggrieved by the award of sentence, the State prefers an appeal for enhancement of sentence. The purpose for deciding the appeal for enhancement of merits is obvious. In a given case, the High Court may interfere either on the merits or may not reduce the sentence at the request of the appellant-accused but in a case which is pending at the instance of the State the finding recorded in the Criminal Appeal filed by the accused would not affect the jurisdiction of the High Court as an Appellate Court to hear and decide the appeal on merits. Obviously, the Court must be aware of the legal position that if the appeal filed by the accused is simply dismissed then the High Court would have jurisdiction to hear and decide the said appeal on merits but if the appeal of the appellant accused is allowed by the High Court either on merits or on the question of sentence then the very foundation for enhancing the sentence would be shattered and dislodged and the appellant Court would have no jurisdiction to enhance the sentence. The High Court as the appellate Court would have jurisdiction to hear and decide an appeal on the merits, if the appeal is for the enhancement of sentence arising out of the same case. In the present matter, during pendency of the present appeal the respondent had filed an appeal challenging the award of the sentence. Because of the intervention of the first appellate Court which was well within the knowledge of the State Authorities, they cannot now say that this Court would still have jurisdiction to interfere on the question of sentence and the Court is required to enhance the sentence. If the State wanted the enhancement then it was obliged and duty bound to challenge the judgment passed in Criminal Appeal No. 48/97. As the State has not challenged the correctness, validity, legality and propriety of the judgment dated 14.7.98 passed in Criminal Appeal No 48/97, this Court would not be in a position to hear and decide the appeal on merits and enhance the sentence. As the State has not challenged the correctness, validity, legality and propriety of the judgment dated 14.7.98 passed in Criminal Appeal No 48/97, this Court would not be in a position to hear and decide the appeal on merits and enhance the sentence. So far as the appeal under section 454 is concerned, the lower Court has not passed any order relating to the vehicle in question. The State and the accused person shall be free to make an application to the trial Court for passing necessary orders regarding disposal of the said motor vehicle bearing Registration No. MP-09-S-3399. On the merits, the appeal is dismissed but the parties are given liberty to approach the trial Court for disposal of the property.