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Himachal Pradesh High Court · body

2007 DIGILAW 384 (HP)

District and Sessions Judge v. Yoginder Sharma

2007-09-10

V.K.GUPTA

body2007
JUDGMENT V.K. Gupta, C.J. 1. The learned Sessions Judge, Shimla has sent this Reference to this Court with a request by him for a consideration by this Court of the issue as to whether the sentence inflicted upon the respondent-accused deserves to be enhanced or not. This Reference is contained in para (41) of the judgment in Criminal Appeal No. 41-S/10 of 2006 decided by him on 14th December, 2006. Para (41) for ready reference is reproduced herein below, which reads thus: So far as the sentence part is concerned, I am at pains to notice that the learned trial Magistrate has sentenced the accused/appellant to pay a mere fine of Rs. 500/- each for the offences under Sections 279, 337 and 304-A of the Indian Penal Code. In my considered opinion, the sentence imposed upon the accused/appellant by the learned trial Magistrate is grossly inadequate. Therefore, it is fair and in the interest of justice that a reference be made to the Hon'ble High Court with the request to consider the question of enhancement of sentence to be inflicted upon the accused/appellant. 2. The learned Sessions Judge was hearing a criminal appeal filed by the respondent-accused against his conviction by the trial Magistrate under Sections 279,337 and 304-A of the Indian Penal Code. The respondent-accused upon and after such conviction was sentenced to pay a fine of Rs. 500/- on each of the aforesaid counts. The learned Sessions Judge while rejecting and dismissing the aforesaid appeal filed by the respondent-accused against his conviction and upholding the conviction found that the sentence imposed by the trial Magistrate was grossly inadequate and, as noticed in para 41 (supra), being of the view that he, not having the power and jurisdiction to himself enhance the sentence, made the aforesaid Reference to this Court for the aforesaid purpose. 3. The question which has arisen for consideration by this Court in this Reference is as to whether the learned Sessions Judge himself had or did not have the power and jurisdiction to enhance the sentence and whether this Court alone has such power and in either of the aforesaid eventualities under which provision of law is such power and jurisdiction exercisable, either by the learned Sessions Judge or by this Court, or by both. 4. 4. Undoubtedly appeal against his conviction was filed by the respondent-accused before the learned Sessions Judge under Sub-section (3) of Section 374 of the Code of Criminal Procedure. Section 374 reads thus: 374. Appeals from convictions.--(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2) 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 other person convicted at the same trial, may appeal to the High Court. (3) Save as otherwise provided in Sub-section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or (b) sentenced under Section 325, or (c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session. 5. A bare perusal of Sub-section (3) clearly reveals that if a person has been convicted by a Magistrate, appeal against such conviction lies to the Court of Session. Section 377 of the Code of Criminal Procedure entitles and permits the State Government to present an appeal either in the High Court or in the Court of Session, depending upon the extent and nature of conviction, against the sentence on the ground of its inadequacy. Section 377 reads thus: 377. Appeal by the State Government against sentence.--(1) Save as otherwise provided in Sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy- (a) to the Court of Session, if the sentence is passed by the Magistrate, and (b) to the High Court, if the sentence is passed by any other Court. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy- (a) to the Court of Session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other Court. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. 6. In this case it is admitted that no appeal with respect to the inadequacy of sentence and seeking its enhancement was filed by the State under Section 377. In the absence of any appeal having been filed under Section 377 for enhancement of sentence on the ground of its inadequacy, the question which needs to be considered as well as answered in this Reference is whether a Court, any Court for that matter has the power and jurisdiction to enhance the sentence on the ground of its inadequacy. The powers of an Appellate Court have very clearly been enumerated and defined in Section 386 of the Code, which reads thus: 386. The powers of an Appellate Court have very clearly been enumerated and defined in Section 386 of the Code, which reads thus: 386. Powers of the Appellate Court.--After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) after the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. 7. 7. Since the case before us relates only to an appeal from a conviction (the learned Sessions Judge, Shirhla was hearing such an appeal) Clause (b) of Section 386 shall be applicable and attracted in this case. As can be manifestly seen from a bare perusal of Clause (b) the power of the Appellate Court while hearing and disposing of an appeal against a conviction includes the power to reverse the finding and sentence and accordingly to acquit or discharge the accused or order his re-trial, alter the finding but maintaining the sentence or with or without altering the finding alter the nature and/or the extent of the sentence but not so as to enhance the same. (Emphasis supplied by me). 8. What, therefore, clearly emerges is that the Appellate Court while dealing with and disposing of an appeal against conviction, even though possessed of various powers, has been clearly prohibited from exercising any power for enhancing the sentence. The legislative intent is thus clear. It clearly lays down that a Court hearing an appeal against a conviction may pass various orders and dispose of the appeal in one manner or the other, as has been laid down in sub-clauses (i), (ii) and (iii) of Clause (b) of Section 386 but it cannot enhance the sentence. The reasoning and the logic behind this legislative intent is apparently clear and that is that the sentence should be enhanced and can be enhanced by an Appellate Court exercising appellate jurisdiction only if an appeal for enhancement of sentence on the ground of inadequacy of the same has been filed under Section 377 by the State. Correspondingly what thus emerges for our consideration in this Reference is whether, in the absence of such an appeal having been filed under Section 377 of the Code (and undoubtedly the Appellate Court exercising jurisdiction under Clause (b) of Section 386 not having any power to enhance the sentence) can the sentence imposed upon an accused be enhanced by a Court on the ground of its inadequacy and if so by which Court and exercising what jurisdiction under law. 9. In the case of Sahab Singh and Ors. 9. In the case of Sahab Singh and Ors. v. State of Haryan reported in 1990 CriLJ 1202 , their Lordships of the Supreme Court held as under: ....It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any Court subordinate to it. Sub-section (4) of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section 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. 10. In the case of Nadir Khan v. The State (Delhi Administration) reported in 1976 CRI.L.J. 1721 in paras 4 and 5 it was held as under: (4) It is well known and has been ever recognized that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The High Court as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate Court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by re-arrangement of the Sections. It is true, the new Code has expressly given a right to the State under Section 377 Cr.P.C. to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Article 136 of the Constitution. (5) Section 401 expressly preserves the power of the High Court, by itself to call for the records without the intervention of another agency and has kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court. The provisions under Section 401 read with Section 386 (c)(iii), Cr.P.C. are clearly supplemental to those under Section 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government as the case may be. There is therefore absolutely no merit in the contention of the learned Counsel that the High Court acted without jurisdiction in exercising the power of revision, suo motu, for enhancement of the sentence in this case. The application stands rejected. There is therefore absolutely no merit in the contention of the learned Counsel that the High Court acted without jurisdiction in exercising the power of revision, suo motu, for enhancement of the sentence in this case. The application stands rejected. Section 397 of the Code of Criminal Procedure reads thus: 397. Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to 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 may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-section and of Section 398. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry trial or other proceeding. (3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same, person shall be entertained by the other of them. Section 399 of the Code reads thus: 399. Sessions Judge's powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said Subsections to the High Court shall be construed as references to the Sessions Judge. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said Subsections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. 11. Whereas Section 397 confers concurrent jurisdiction upon the Sessions Judge and the High Court in so far as the exercise of revisional power is concerned and Section 399 specifically lays down that the Sessions Judge in exercise of such revisional jurisdiction may exercise all or any of the powers exercisable by the High Court under Sub-section (1) of Section 401, Section 401 confers exclusively upon the High Court alone the revisional jurisdiction in the manner prescribed, laid down and mentioned therein. Section 401 for ready reference is reproduced herein below which reads thus: 401. High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this Section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (3) Nothing in this Section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 12. What is the distinction in the exercise of the revisional jurisdiction concurrently by the High Court and the Sessions Judge under Section 397 on the one hand and exclusively by the High Court under Section 401 on the other? The opening words of both the Sections contain a very important distinction and it is in these very opening words that the difference in the extent, scope and jurisdiction while exercising the power of revision is clearly discernible. Whereas in Section 397 the opening words are "the High Court or any Sessions Judge may call for and examine the record of any proceeding....", Section 401 opens with the words, "in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge the High Court may...." (Emphasis supplied by me) 13. The distinction is thus very clear. The jurisdiction under Section 397 can be exercised by the High Court or the Sessions Judge by itself, specifically calling for the record of any proceeding of an inferior criminal Court. The record can be called for itself by either of these two Courts either in exercise of suo motu power or on an application made to it by someone. Section 401, however, apart from the record being called by itself also confers jurisdiction in a situation where the High Court, "otherwise comes to know of the proceeding". The expression, "which otherwise comes to its knowledge" is of a wider amplitude and broader jurisdiction. Section 401, however, apart from the record being called by itself also confers jurisdiction in a situation where the High Court, "otherwise comes to know of the proceeding". The expression, "which otherwise comes to its knowledge" is of a wider amplitude and broader jurisdiction. The exercise of revisional jurisdiction under Section 397 can be resorted to only if the record has specifically been called for by the Court. Exercise of revisional jurisdiction under Section 401 can be resorted to by the High Court in a situation where it has itself called for the record. It can additionally be exercised by the High Court in a situation in which the High Court otherwise comes to know of something, an irregularity or an illegality etc. having been committed. 14. Applying this distinction between the exercise of the revisional jurisdiction under the aforesaid two Sections what we find is that in the present case, the learned Sessions Judge, Shimla had not called for the record of the case himself for the purpose of satisfying him as to the correctness, legality or propriety of the sentence. Actually, the record had reached his Court consequent upon it having been called by him specifically for an altogether different purpose, viz. for the purpose of his hearing and disposal of an appeal filed in his Court against a judgment of conviction in terms of his exercising the power and jurisdiction as an Appellate Court under Section 386 read with Section 374 of the Code. It can, therefore, be clearly said that without specifically calling for the record for the purpose of satisfying himself as to the correctness, legality or propriety of the sentence, "it otherwise came to his knowledge", while hearing the aforesaid appeal against conviction, that the sentence inflicted upon the respondent-accused was grossly inadequate. This is as far as the facts of the present case go. 15. The legal position, whether one applies and invokes Section 397 or Section 401 of the Code which thus emerges is that the High Court or the Sessions Judge, either of them exercising jurisdiction under Section 397 has the power, by calling for and examining the record of any proceeding to satisfy itself/himself about the correctness, legality or propriety of any finding, sentence or order. This, coupled with the fact that Section 399 specifically confers upon the Sessions Judge, while exercising revisional jurisdiction under Section 397 of the Code, all powers of the High Court exercisable by the High Court under Sub-section (1) of Section 401. The net result is that both the Courts, the High Court in exercise of its power under Section 397 read with Section 401 and the Court of Session in exercise of its powers under Section 397 read with Section 399, have the power and jurisdiction to enhance the sentence even though the appeal for enhancement on the ground of its inadequacy has not been filed under Section 377 of the Code. This legal position in so far as the High Court is concerned has been recognized by the Apex Court in the judgments quoted above and based on the aforesaid discussion and exposition of law what is available to the High Court (i.e., the power and jurisdiction) is equally available as well as applicable to the Court of Session. 16. In the present case, however, since the Court of Session had not specifically called for the record of the learned trial Magistrate for the purpose of satisfying itself about the correctness, legality or propriety of the sentence and since the issue relating to sentence had come to its knowledge only while exercising the appellate jurisdiction under Section 386(b) of the Code, in view of this peculiar fact situation and the circumscribed jurisdiction vesting in the Sessions Judge under Section 397 read with Section 399, in contradistinction to the wider, plenary jurisdiction vesting in the High Court under Section 401, the power and the jurisdiction to enhance the sentence in this case vested exclusively and only in the High Court and not in the Court of Session. The Reference is answered accordingly. Let a copy of this judgment be sent to learned Sessions Judge, Shimla for his information. 17. In view of the above mentioned facts and circumstances and after going through the judgment of the learned Sessions Judge, Shimla I do feel that in the present case I should invoke and exercise my jurisdiction under Section 401 of the Code and issue notice to the accused-respondent to show-cause as to why sentence be not enhanced because I prima-facie feel that a case for enhancement of sentence has been made out. 18. 18. Let a notice accordingly be issued to the respondent-accused asking him to show-cause as to why the sentence in this case be not enhanced. Notice shall be made returnable in six weeks. Before parting, I wish to place on record my deep sense of appreciation as well as gratitude towards Shri R.K. Bawa, learned Senior Advocate and Shri Bimal Gupta, learned Advocate who both very ably and painstakingly assisted me in this case.