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2015 DIGILAW 1495 (KER)

Pokker v. P. K. Abdurahiman

2015-10-28

P.D.RAJAN

body2015
ORDER : P.D. Raian. J. This Revision petition is preferred by the defacto complainant against the judgments in Crl. Appeal No.670 of 2004, 741 of 2004 and 749 of 2004 of the Sessions Court, Kozhikode. The accused were charge sheeted by the Judicial First Class Magistrate, Payyoli under Sections 143, 147, 447, 427 r/w 149 IPC. The charge against the accused is that on 6.2.1996, after 12 O'clock in the night, the accused, along with 75 unidentified persons formed themselves into an unlawful assembly and in furtherance : of their common object, trespassed into the property owned by the brother of the revision petitioner, committed rioting and demolished the compound wall and thereby sustained a loss of Rs.50,000/-. In this incident, Payyoli police registered a case and after completing investigation, SHO, Payyoli laid a final report before Judicial First Class Magistrate, Payyoli. A2 is absconding, therefore his case was split up and refiled. 2. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P12 as documentary evidence. The incriminating circumstances brought out in evidence were denied by die accused while questioning them. They did not adduce any defence evidence. The learned Magistrate convicted the accused and sentenced A1, A3 to A7 to simple imprisonment for two months each under section 143 r/w. Section 149 IPC, rigorous imprisonment for eight months and fine of Rs. 1000/- each, with a default sentence of simple imprisonment for three months each under section 147 r/w Section 149 IPC, rigorous imprisonment for one year and fine of Rs.2000/- each with a default sentence of simple imprisonment for four months under section 427 r/w Section 149 IPC, simple imprisonment for one month each under section 447 r/w Section 149 IPC, If the fine amount is realised, it was directed to pay Rs. 10,000/- to PW1 by way of compensation under section 357(1) Cr.P.C. Against that accused preferred Crl. Appeal Nos.670/2004, 741/2004 and 749/2004 and the learned Sessions Judge, Kozhikode modified the sentence of the trial court. Being aggrieved by that, the defacto complainant preferred this revision. 3. The main contention advanced by the learned counsel appearing for the revision petitioner is that the appellate court reduced the sentence of imprisonment to simple imprisonment till rising of court, which is illegal, hence the sentence has to be enhanced. Being aggrieved by that, the defacto complainant preferred this revision. 3. The main contention advanced by the learned counsel appearing for the revision petitioner is that the appellate court reduced the sentence of imprisonment to simple imprisonment till rising of court, which is illegal, hence the sentence has to be enhanced. The brother of the revision petitioner sustained heavy loss in the above incident and he is entitled to get reasonable amount of compensation, which was not considered by the trial court and appellate court. He also contended that Section 397 and 401 Cr.P.C empowers the defacto complainant to file a revision petition to rectify that illegality. 4. In reply to the above contention, the learned counsel appearing for the respondents 1 to 6 contended that the appellate court already modified the sentence and rightly decided the case, hence a revision by third party to enhance the sentence is not maintainable. 5. Now the question is that when the state Government failed to prefer an appeal for enhancement of sentence, it precludes the defacto complainant from exercising the power of revision. Appeal by state Government against sentence has been explained under Section 377 of die Code of Criminal Procedure (Code hereinafter) which reads as follows "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, i f 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 i s 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. According to the present law the right to appeal against the inadequacy of the sentence has been given to the State Government and not to the complainant or a third person. Section 374 of the Code guarantees for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 empowers the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub-section (3) of Section 377 ensures that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to tire accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for Iris acquittal or for the reduction of the sentence. A close analysis of Section 377, it would show that an appeal on the ground of inadequacy of sentence can be entertained by a court of sessions if a lenient sentence is passed by a Magistrate. Like so, High Court can entertain an appeal for enhancement of sentence on the ground of inadequacy if the sentence is passed by any other Court. Like so, High Court can entertain an appeal for enhancement of sentence on the ground of inadequacy if the sentence is passed by any other Court. But this provision does not restrict the complainant or a third person to approach the High Court or Court of Sessions for exercising its revisional jurisdiction. However in certain cases High Court or Sessions Court may exercise its suo motu power of revision to enhance the sentence. 7. Apex Court in Sahab Singh and others v. State of Haryana, AIR 1990 SC 1188 held as follows:- 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". 8. Admittedly no appeal was preferred by the State Government against the sentence imposed by the Sessions Judge. Section 386 mentions about tire powers of the appellate court. The first proviso to the section states that the sentence shall not be enhanced unless the accused is given an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. Section 386 mentions about tire powers of the appellate court. The first proviso to the section states that the sentence shall not be enhanced unless the accused is given an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. Inter alia it empowers the High Court to call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself 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 any inferior court. Section 401 provides that in the case of any proceedings, 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 of the Code. Sub-section (2) of Section 401 provides that no order under this Section shall be made to the prejudice of the accused or other person unless he is given an opportunity of being heard either personally or by pleader in his own defence. According to sub-section(4) where under this Code an appeal lies and no appeal is preferred, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. The object of conferring revisional power under section 397 and 401 of the Code is a general superintendence in order to correct the grave failure of justice. Such injustice may arise from the misconception of law, irregularity of procedure, misreading of evidence, or misconception about law or facts. However in the light of the above provision of the Code, Supreme Court has given a clear cut opinion that when State has not filed any appeal against inadequacy of sentence, High Court can exercise its suo motu power of revisional jurisdiction. 9. Apex Court in Nadir Khan v. The State (Delhi Administration), AIR 1976 SC 2205 held as follows:- "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. 9. Apex Court in Nadir Khan v. The State (Delhi Administration), AIR 1976 SC 2205 held as follows:- "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 tire Constitution. Section 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and had kept alive the ancient exercise of power when something extra ordinary 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. 10. When a revision petition is filed by a private party on the ground of inadequacy of sentence, High Court has ample power to issue show cause notice why sentence should not be enhanced on the basis of that revision petition. This position has been explained by the Apex Court in Prathap v. State of UP, 1973 SCC (Crl) 496 and Bachan Singh v. State of Punjab, 1979 (4) SCC 754 . In Prathap's case (supra) it was held as follows:- "Under Section 439 of tire Code of Criminal Procedure the High Court has got ' ample powers to issue notice to show cause why Iris sentence should not be enhanced on the basis of a revision petition filed by a private party and the power of the High Court under this section is one which the High Court can impose suo motu and all that a person filing a revision petition under that section docs is to draw the court's attention to an illegal, improper or incorrect finding, sentence or order of a subordinate court. The fact that the Government did not do so does not affect the powers of the High Court under that section". In Bachan Singh's case (supra) it was held as follows:- "7. The fact that the Government did not do so does not affect the powers of the High Court under that section". In Bachan Singh's case (supra) it was held as follows:- "7. As has been stated, a petition was filed under Section 401 Cr.PC, for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under Section 377. It will be recalled that the High Court made an express order on December 9,1974, for the hearing of the revision petitioner along with the appeal which had been filed by the accused. xxxxxxxxx 11. There is another reason for this view. It was permissible for the High Court under Section 397 CrPC to call for and examine the record of the proceeding before the trial court for the purpose of satisfying itself as to the correctness, legality or "propriety" of any finding, "sentence" or order, recorded or passed by that inferior court. The High Court's power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in Section 401 CrPC to which reference has been made above. That includes the power conferred on a court of appeal under Section 386 to enhance or reduce the sentence. So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above, there was nothing to prevent the High Court from invoking its powers under Section 397 read with Section 401 CrPC and to make an order for the enhancement of the sentence". 11. Therefore the State has got a right to file an appeal under Section 377 Cr.P.C, and so, the State cannot be allowed to file a revision. In other words, in the light of the right conferred, the Government alone could file an appeal for enhancement of sentence and the private party would not be allowed to file an appeal under Section 377 Cr.PC. To put it differently, the State could file appeal alone and not revision. In other words, in the light of the right conferred, the Government alone could file an appeal for enhancement of sentence and the private party would not be allowed to file an appeal under Section 377 Cr.PC. To put it differently, the State could file appeal alone and not revision. In view of the facts stated above, it can be safely held that the complainant or the interested party (third party) is competent to file a revision before the High Court for enhancement of sentence in the absence of any appeal by the State. 12. In this case High Court can exercise its jurisdiction to enhance sentence only if the High Court is satisfied that the sentence imposed by the appellate Judge is unduly lenient or that, in passing the order of sentence, the appellate Judge had manifestly failed to consider the relevant facts. But enhancement of fine without imposing sentence of imprisonment will not amount to enhancement of sentence. This court in Devu v. Excise Circle Inspector, 1986 Crl.LJ 1478 (Kerala) held that the amount of fine in substitution of the period of imprisonment could not be taken as an enhancement of the sentence. Here the trial Magistrate had exercised his jurisdiction properly, but that sentence was modified by the Sessions Judge by showing too much leniency and failed to consider the relevant facts. 13. Considering the nature of offence and the circumstance in which it was committed, the sentence of fine is modified as follows. (a) A1 and A3 to A7 arc sentenced to imprisonment till rising of court and pay fine of Rs.1000/- each under Section 143 read with 149 IPC, in default, simple imprisonment for one month. (b) They are also sentenced to pay fine of Rs.2000/- each under Section 147 read with 149IPC, in default simple imprisonment for two months. (c) They are also sentenced to pay fine of Rs.3000/- each under Section 427 read with 149 IPC, in default simple imprisonment for three months. (d) No separate fine is imposed under Section 447 IPC. (e) Trial court has already directed to disburse Rs. 10,000/- to PW1 as compensation. In addition to that, if the fine amount is realised, the learned Magistrate shall disburse another Rs. 10,000/- under Section 357(1 )(b) Cr.P.C. 14. (d) No separate fine is imposed under Section 447 IPC. (e) Trial court has already directed to disburse Rs. 10,000/- to PW1 as compensation. In addition to that, if the fine amount is realised, the learned Magistrate shall disburse another Rs. 10,000/- under Section 357(1 )(b) Cr.P.C. 14. The learned counsel appearing for the respondents 1 to 6 submitted that they have already appeared before the trial court and had undergone the sentence of imprisonment till rising of court. In the circumstance, they are directed to pay the balance fine amount forthwith, failing which learned Magistrate shall issue warrant for recovery of fine.