DEB, J. ( 1 ) THIS criminal revision has been registered under orders of the Chief Justice in exercise of suo motu revisional powers under S. 397 read with S. 401 of the Code of Criminal Procedure Code, 1973 (in short in Cr. P. C.) in order to be satisfied as to the correctness, legality and propriety of the judgment of conviction and order of probation passed by the Special Judge (Human Rights), Sikkim at Gangtok on the 3rd July, 1999 in Criminal Case (Human Rights) No. 11 of 1996 registered under Ss. 342/304/34 of the Indian Penal Code (in short the I. P. C.) where the accused-Writer Constable 1626 Damber Bahadur Chhetri, Constable 1288 Sukraj Subba and the Home Guard Indra Kumar Sharma, Gyalshing Police Station, West District, Gyalshing were convicted under Ss. 342/323/34, I. P. C. and were released on probation. ( 2 ) THE scope and object of revisional powers under Ss. 435 and 439 of old Cr. P. C. and under Ss. 397 and 401 of new Cr. P. C. have been discussed by the Supreme Court in various decisions. ( 3 ) THE Supreme Court in the case of Amar Chand Agarwala v. Shanti Bose, reported in AIR 1973 SC 799 : (1973 Cri LJ 577) observed that the jurisdiction under S. 439, is normally to be exercised only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. ( 4 ) IN the case of Akalu Ahir v. Ramdeo Ram, reported in AIR 1973 SC 2145 : (1973 Cri LJ 1404), it has been observed that -"there is also another aspect of the matter. The High Court has evaluated the evidence on the existing record. On retrial the trial Court will have to consider the evidence led at the retrial and arrive at its conclusion on that record. The expression of opinion on the present evidence with respect to the commission of the alleged offence would not be binding and would, therefore, hardly be relevant. But it may nevertheless leave an unconscious impression on the mind of the Court, holding the fresh trial. This aspect also seems to lend some support to the view that normally re-trial should not be ordered unless there is some infirmity rendering the trial defective. But it may nevertheless leave an unconscious impression on the mind of the Court, holding the fresh trial. This aspect also seems to lend some support to the view that normally re-trial should not be ordered unless there is some infirmity rendering the trial defective. " ( 5 ) IN the case of State of Orissa v. Nakula Sahu, reported in AIR 1979 SC 663 : (1979 Cri LJ 594), it has been observed by the Supreme Court while dealing with the question of interference by High Court in exercise of revisional power, that although the revisional power of the High Court under S. 439 read with S. 435 is as wide as the power of Court of appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under S. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. In spite of the wide language of S. 435, the High Court is not expected to act under S. 435 or S. 439 as if it is hearing an appeal. ( 6 ) IN the case of Sahab Singh v. State of Haryana, reported in AIR 1990 SC 1188 : (1990 Cri LJ 1202) it was observed :-"a conjoint reading of Ss. 377, 386, 397 and 401 would indicate that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under S. 377 (1) of the Code. The failure on the part of the State Government to prefer an appeal, does not however, precludes the High Court from exercising suo motu power of revision under S. 397 read with S. 401 of the Code since the High Court itself is empowered in call for the record of the proceeding of any Court subordinate to it. Sub-section (4) of S. 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that subsection cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. Sub-section (4) of S. 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that subsection cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the trial Court. "it is, therefore, clear that it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. In the present case the revisional notice for enhancement of sentence has not been issued, therefore, this Court cannot enhance the sentence. ( 7 ) THE Supreme Court in the case Krishnan v. Krishnaveni, reported in (1997) 4 SCC 241 : (1997 Cri LJ 1519), observed as follows :-"exercise of revisional power by the High Court under S. 397 read with S. 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior Criminal Courts to the High Court and Courts of Judicial Magistrates are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, S. 397 and S. 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under S. 401 to exercise the revisional power on the grounds mentioned therein, i. e. , to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under S. 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinate Courts to not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice. " ( 8 ) AGAIN, in the case of State of Kerala v. Puttumana Illath Jathavedan Namboodri, reported in (1999) 2 SCC 452 : (1999 Cri LJ 1443), the Supreme Court held :"in its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. " ( 9 ) KEEPING the aforesaid principles in mind, the present case is examined. In this case after investigation, the Investigating Officer submitted charge-sheet against all the three respondents for their trial in the Court under Ss. 342/304/34, Indian Penal Code. During trial, the Court being satisfied of a prima facie case under Ss. 342/304/34, I. P. C. , charges were framed accordingly against each of the convicts for wrongfully confining Bimal Tamang alias Dhanraj Tamang of Darap busty at Gyalshing Police Station, West Sikkim in furtherance of common intention of all the convicts and committing culpable homicide not amounting to murder by causing death of aforesaid Bimal Tamang alias Dhanraj Tamang. All the convicts pleaded not guilty and claimed trial. All the convicts pleaded not guilty and claimed trial. ( 10 ) THE victim Bimal Tamang alias Dhanraj Tamang died in the hospital as a consequence of the assault by the police personnel who are convicts herein inside the Gyalshing Police Station. The prosecution examined 12 witnesses and some of the vital witnesses are police personnel themselves. ( 11 ) THE Special Judge, Human Rights in paragraph 10 of the judgment observed as follows :-"10. Therefore, considering the prosecution evidence on the whole and especially in view of the evidence of the so-called three eye-witnesses viz. P. Ws. 5, 6 and 9 and also medical evidence I have been left with no option but to come to the conclusion that the twelve external injuries and the internal injuries detected on the body of the deceased were caused by 'slaps' and 'kicks' given by the accused persons and since the injuries inflcited on the deceased have led to his death without any intention and knowledge on the part of the accused persons it will have to be taken that the injuries caused were 'simple' in nature. The learned Special Public Prosecutor Shri K. T. Bhutia also during his oral argument argued that for kicks and slaps offence under S. 323, I. P. C. is proved beyond reasonable doubt. As for the offence under S. 342 of the Indian Penal Code it has been established beyond doubt that the deceased had been detained at Gyalshing Police in the intervening night of 7th and 8th December, 1993. " ( 12 ) THE learned trial Judge referred to the evidence of Dr. S. D. Sharma, P. W. 10 who conducted autopsy on the body of the deceased-Dr. Sharma, P. W. 10 detected the following external injuries on the body of the deceased :-1. Healing superficial laceration with brown soft scab 2 cm. x. 5 cm. vertically placed over the medial end of the left eye brow. 2. Extra vagation of blood bluish brown in colour over both eye lids of left eye. 3. Healing abrasion with brown soft scab over lateral end of the right eye brow in an area of. 5 x. 5 cm. 4. Healing contused abrasion 1 x 1 cm. With soft brown scab over upper part of right cheek. 5. Healing contused abrasion 1 x. 5 cm. with soft brown scab 2 cm. behind injury No. 4. 6. 3. Healing abrasion with brown soft scab over lateral end of the right eye brow in an area of. 5 x. 5 cm. 4. Healing contused abrasion 1 x 1 cm. With soft brown scab over upper part of right cheek. 5. Healing contused abrasion 1 x. 5 cm. with soft brown scab 2 cm. behind injury No. 4. 6. Healing abrasion with soft brown scab. 5 x. 5 cm. over the root of right ear. 7. Healing superficial laceration in an area of 2 x 1 cm. with soft brown scab over the left parietal area. 8. Healing abrasion 2 x 1 cm. with soft brown scab over the right scapular region. 9. Healing abrasion 1 x 1 cm. with soft brown scab over the spinal column in the area of D-10. 10. Healing abrasion 3 x 1 cm. with soft brown scab over the left shoulder posteriorly. 11. Healing abrasion 1 x 1 cm. with soft brown scab over the right shin. 12. Healing abrasion 1 x. 5 cm. over the right knee with soft brown scab. DR. S. D. Sharma, P. W. 10 was of the view that all the injuries both external and internal found on the body of the deceased could not be produced by a single fall and it is not possible for a single fall to produce haemorrhage of the scull bone and after completing autopsy, P. W. 10 was of the opinion that the cause of death was coma as a result of intracranial haemorrhage following blunt injury to the head. ( 13 ) THE Special Judge arrived at the conclusion that the twelve external injuries and the internal injuries detected on the body of the deceased were caused by 'slaps' and 'kicks' given by the accused persons and since the injuries inflcted on the deceased have led to his death without any intention and knowledge on the part of the accused persons, it will have to be taken that the injuries caused were 'simple' in nature. This part of the judgment could not be sustained in law. This part of the judgment could not be sustained in law. The element knowledge or intention are not necessary for constituting an offence under S. 325, I. P. C. Any hurt which endangers life is designated as grievous hurt under the eighth clause of S. 320 of I. P. C. Under S. 325 of I. P. C. whoever voluntarily causes grievous hurt, shall be punished with imprisonment or either description for a term which may extend to seven years and shall also be liable to fine. The trial Judge has misdirected himself to come to the conclusion that where there is no intention or knowledge to cause death to a person on account of certain injuries such injuries caused will have to be treated as simple in nature. ( 14 ) SECTIONS 320 and 325 of I. P. C. read as follows :-"320. Grievous hurt- The following kinds of hurt only redesignated as "grievous" :-FIRST - Emasculationsecondly - Permanent privation of the sight of either eye. THIRDLY - Permanent privation of the hearing of either ear. FOURTHY - Privation of any member or joint. FIFTHLY - Destruction or permanent impairing of the powers of any member or joint. SIXTHLY - Permanent disfiguration of the head or face. SEVENTHLY - Fracture or dislocation of a bone or tooth. EIGHTHLY - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in sever bodily pain, or unable to follow his ordinary pursuits. ""325. Punishment for voluntarily causing grievous hurt.- Whoever, except in the case provided for by S. 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. "the trial Judge has failed to consider the provisions of Ss. 320 and 325, I. P. C. and this has resulted in grave miscarriage of justice requiring fresh consideration by the learned trial Judge. ( 15 ) WHILE considering order of sentence the learned trial Judge ordered as follows :-"however, as far as sentence is concerned it may be taken into consideration that the accused No. 1 is a Writer Constable, accused No. 2 is a Constable and accused No. 3 was a Home Guard. ( 15 ) WHILE considering order of sentence the learned trial Judge ordered as follows :-"however, as far as sentence is concerned it may be taken into consideration that the accused No. 1 is a Writer Constable, accused No. 2 is a Constable and accused No. 3 was a Home Guard. And it appears that everything that went on in the Gyalshing Police Station on the relevant night was without the "notice" of the officer-in-charge (P. W. 1) and second officer-in-charge (P. W. 11 ). There is no adverse antecedents against any of the accused persons. Therefore, having regard to the recent trend in penology I am of the opinion that the accused persons should be given the benefit of the provision of S. 360 of the Code of Criminal Procedure, 1973. I, therefore, order that each of the accused persons be released on probation of good conduct on his entering into a bond with one surety in the sum of Rs. 5,000/- (Rupees five thousand only) and appear and receive sentence when called upon during the next two years from today. The accused shall in the meantime maintain peace and be of good behaviour. " ( 16 ) AGE of each of the accused persons has not been mentioned. The circumstances in which the offence was committed were also not clearly explained and mentioned while invoking provisions of S. 360 of Cr. P. C. The learned trial Judge also did not consider that this was a case where death resulted consequent upon assault by police personnel while the victim was in police custody even when no case was registered against him. All these facts require consideration by the learned trial Judge. ( 17 ) IN the result, the revision is allowed. Judgment of conviction under S. 323 and order of probation both under Ss. 323 and 342, I. P. C. is set aside and it is directed that the learned trial Judge shall reconsider the matter again in the light of the observations made hereinabove. It is made clear that whatever observations have been made by us on the points of facts shall be taken only to have been made for the purpose of the revision and shall not prejudice the trial Judge while reconsidering the matter. ( 18 ) THE convicts are directed to appear before the trial Judge on the 25th April, 2000 without fail. ( 18 ) THE convicts are directed to appear before the trial Judge on the 25th April, 2000 without fail. ( 19 ) LET the lower Court records be sent at once. Revision allowed. --- *** --- .