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2025 DIGILAW 1225 (ALL)

Maiyya Deen v. State of U. P.

2025-10-08

SAMIT GOPAL

body2025
JUDGMENT : Samit Gopal, J. 1 . List revised. 2 . Heard Sri M. Asif, learned counsel for the revisionist and Sri Bade Lal Bind, learned counsel for the State and perused the record. The trial court records were summoned which have also been perused. 3 . Challenging the judgment and order dated 12.12.2013 passed by the Chief Judicial Magistrate, Kalpi Jalaun at Orai in Complaint Case No. 534 of 2010 (State of U.P. Vs. Thakur Das and another) whereby the accused Thakur Das was acquitted of the charges levelled against him for offence under Section 7 /16 P.F.A. Act, 1954 whereas the accused Maiyya Deen was convicted under Section 7 /16 of the Prevention of Food Adulteration Act, 1954 and sentenced six months imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to two months additional imprisonment. The accused Maiyya Deen preferred an appeal being Criminal Appeal No. 01 of 2014 (Maiyya Deen Vs. State of U.P.) which was dismissed vide judgment and order dated 10.06.2015 passed by the 3rd Additional Sessions Judge, Jalaun at Orai whereby the accused was convicted and sentenced to two years rigorous imprisonment, fine of Rs. 10,000/- and in default of payment of fine six months additional simple imprisonment. Thus present criminal revision has been filed before this Court. 4 . The facts of the case are that on 31.05.1995 the Chief Food Inspector found the accused revisionist selling milk on Police Line, Churkhi Road, Orai and on suspicion of the same to be adulterated gave him a notice under Form-VI after which he purchased 750 ml of the said milk by paying Rs. 6/- to him from a can after stirring it and it was homogenized. The seller informed him that he is a servant of Thakur Das. The purchased milk was then distributed in three parts and sealed in three bottles in front of the seller and witnesses in equal quantity as per rules. The persons there were requested be witnesses to the same who denied it. Form-VII was then prepared and one of the sealed pack was sent to the Food Analyst through registered parcel for its analysis whereas the two other bottles were stored in the office of the Chief Medical Officer, Orai. 5 . The persons there were requested be witnesses to the same who denied it. Form-VII was then prepared and one of the sealed pack was sent to the Food Analyst through registered parcel for its analysis whereas the two other bottles were stored in the office of the Chief Medical Officer, Orai. 5 . The Food Analyst vide his report dated 06.07.1995 found the sample of buffalo milk to contain milk fat 5.4 percent and milk solids not fat 6.6 percent and thus opined that as per standard, the sample is milk fat deficient by 10 percent and milk solids not fat deficient by about 27 percent. A complaint dated 01.11.1995 was thus filed before the Court of Chief Judicial Magistrate, Jalaun at Orai for offence under Section 7 /16 of the Prevention of Food Adulteration Act, 1954. It is stated by the prosecution that notice under Section 13 (2) of the Act was sent by registered post to the accused. 6 . The statement under Section 244 Cr.P.C. of Chutkan Verma the Chief Food Inspector was recorded as PW-1, Hari Mohan Verma the Food Clerk in the office of CMO concerned was recorded as PW-2. Subsequently, charge under Section 7 /16 of the Prevention of Food Adulteration Act, 1954 was framed against the revisionist vide order dated 28.05.2010 passed by the Chief Judicial Magistrate, Orai. The statement of Chutkan Verma the Chief Food Inspector was recorded as PW-1 under Section 246 Cr.P.C., the witness Krishna Prasad was recorded as PW-3. The accused in his statement under Section 313 Cr.P.C. denied the prosecution case. He stated that he is a handicapped and unable to ride a bicycle. He further states that he is not a servant of Thakur Das and does not sell milk. In defence Mata Prasad DW-1 was produced who stated that Thakur Das used to repair watches and had a shop besides a hotel at the said place. He was not dealing in milk. Maiyya Deen was not servant of Thakur Das. The trial court after recording of the evidence passed the judgment and order as aforesaid. Against the said judgment and order, the accused revisionist Maiyya Deen preferred an appeal before the Appellate Court which was dismissed but the sentence as imposed on him was enhanced as aforesaid. This revision has thus been filed challenging the judgments and orders as aforesaid. 7 . Against the said judgment and order, the accused revisionist Maiyya Deen preferred an appeal before the Appellate Court which was dismissed but the sentence as imposed on him was enhanced as aforesaid. This revision has thus been filed challenging the judgments and orders as aforesaid. 7 . Learned counsel for the revisionist raised two submissions before the Court. The first submission is a challenge to the judgment and order of the Appellate Court. It is submitted that the judgment and order of the trial court dated 12.12.2013 convicted and sentenced him for offence under Section 7 /16 of the Prevention of Food Adulteration Act, 1954 to six months imprisonment, fine of Rs. 1,000/- and in default of payment of fine to two months additional imprisonment against which an appeal was preferred before the Appellate Court in which the Appellate Court has enhanced the sentence as imposed against the revisionist to two years rigorous imprisonment, fine of Rs. 10,000/- and in default of payment of fine to six months simple imprisonment. It is submitted that there was no appeal filed by the complainant or State for enhancement against the judgment and order of the trial court but in an appeal challenging the judgment and order of conviction of the trial court by the accused, the Appellate Court has enhanced the sentence as awarded to him. It is submitted that the view as taken by the Appellate Court is totally illegal inasmuch in the absence of any appeal by the complainant or State for enhancement, the Appellate Court cannot enhance the sentence as awarded by the trial court in an appeal filed by an accused convict challenging his conviction and sentence. It is further submitted that in an appeal from a conviction, the Appellate Court cannot enhance the sentence awarded to the accused by the trial court. 8 . The Apex Court in the case Sachin Vs. State of Maharashtra : 2025 SCC OnLine SC 834 has held that in an filed by an accused / convict against his conviction the sentence cannot be enhanced by the appellate court. It was held as under: “18 . 8 . The Apex Court in the case Sachin Vs. State of Maharashtra : 2025 SCC OnLine SC 834 has held that in an filed by an accused / convict against his conviction the sentence cannot be enhanced by the appellate court. It was held as under: “18 . We find merit in the submission of learned counsel for the appellant that the record does not reflect that the counsel for the appellant-accused or the accused himself was heard on the question of modifying the charge from a minor offence to a major offence and thereby altering the finding and enhancing the sentence. The further and more important submission is that, in an appeal filed by the accused/convict the sentence cannot be enhanced by the appellate court. 19 . Section 386 CrPC discusses the powers of the appellate court. For ease of reference, Section 386 reads as under: “386. Powers of the Appellate Court. The further and more important submission is that, in an appeal filed by the accused/convict the sentence cannot be enhanced by the appellate court. 19 . Section 386 CrPC discusses the powers of the appellate court. For ease of reference, Section 386 reads as under: “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 or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried 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) 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, 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.” The said provision delineates four categories of appeals, (i) an appeal from an order of acquittal; (ii) an appeal from conviction; (iii) an appeal for enhancement of sentence; and (iv) an appeal from any other order. 20 . Section 377 CrPC which provides for appeal by the State Government against inadequacy of sentence was a novel provision brought in by the CrPC. The 41st Law Commission had noted in its report that, pre-1973, in the absence of a statutory provision which permitted the State to prefer an appeal against inadequate sentence, the State was compelled to invoke the revisional powers of the High Court for correction of any error in sentencing. Finding this to be unsatisfactory, the Law Commission recommended that the State Government should be able to appeal against an inadequate sentence before an ordinary Court of Appeal as well. To effectuate this intent, the Parliament inserted Section 377. 20.1 . In Nadir Khan v. State (Delhi Admn.), (1975) 2 SCC 406 (“Nadir Khan”), the petitioner was found in illegal possession of ganja weighing 7 kgs, and was convicted under Section 61(a) of the Punjab Excise Act, 1914 as extended to Delhi and sentenced to two months' rigorous imprisonment. As no right to appeal was available, an unsuccessful revision application was preferred before the Sessions Court. Aggrieved, the petitioner had then moved the High Court under Section 482 CrPC read with Article 227 of the Constitution against the conviction. In turn, the High Court left the petitioner worse off as it thought that the sentence awarded was inadequate. By suo moto invoking its revisional jurisdiction, the High Court enhanced the sentence to six months. In a special leave petition before this Court, the question raised was, whether, the High Court, in a revision under Section 401 CrPC, has the jurisdiction to enhance the sentence in the absence of an appeal by the State against the inadequacy of sentence under Section 377. 20.1.1 . Noting that the High Court did leave the petitioner worse off, this Court speaking through Goswami, J., characterised the question to be an unmerited doubt on the undoubted jurisdiction of the High Court in acting suo motu in criminal revision in appropriate cases. It was observed that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. It was observed that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. It was held as follows: “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. … 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 rearrangement of the sections. It is true the new Code has expressly given a right to the State under Section 377 CrPC 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.… 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) CrPC 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.” (underlining by us) 20.2 . 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.” (underlining by us) 20.2 . In Eknath Shankarrao Mukkawar v. State of Maharashtra, (1977) 3 SCC 25 (“Eknath Shankarrao Mukkawar”), an appeal was indeed preferred by the State Government under Section 377(1) CrPC against the inadequacy of the sentence of the appellant convicted under Section 16 (1)(a)(i) read with Sections 2(i)(1) and 7(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 500 and in default rigorous imprisonment for two months. The High Court allowed the appeal of the State with regard to the inadequacy of the sentence and while affirming the conviction of the appellant under aforesaid provisions enhanced the sentence to six months' simple imprisonment and a fine of Rs. 1000 and in default simple imprisonment for two months. In appeal before this Court, the principal submission of the appellant was that the appeal under Section 377(1) was not maintainable due to the bar operating then under Section 377(2). This argument is not relevant for our consideration in the present case. Additionally and alternatively, it was argued that the appeal not being maintainable, the High Court could not have, in any event, invoked its revisional powers under Section 401 CrPC to enhance the sentence suo moto as the power of the High Court to enhance sentence which was available under Sections 435/439 CrPC of the old CrPC is absolutely replaced by the provision of appeal under Section 377 CrPC of the new CrPC. Rejecting the submission, a three-judge Bench of this Court held that the High Court has revisional powers to, suo motu, enhance the sentence. It was held that: “6. We should at once remove the misgiving that the new CRIMINAL PROCEDURE CODE , 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. It was held that: “6. We should at once remove the misgiving that the new CRIMINAL PROCEDURE CODE , 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under Section 397 read with Section 401 of the CRIMINAL PROCEDURE CODE , 1973, inasmuch as the High Court can “by itself” call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code.” (underlining by us) The aforesaid judgments of this Court settled the question that a High Court has the jurisdiction to suo moto enhance the sentence under the CrPC by invoking its revisional powers. The pertinent question then is, whether, the High Court could enhance the sentence under its revisional powers in a convict's appeal against conviction. 21 . In this case we are concerned with an appeal from a conviction. In such an appeal the appellate court can exercise its powers in three ways, as per clause (b) of Section 386 CrPC. Clause (c) is with regard to an appeal for enhancement of sentence. While an appeal from a conviction is filed by the accused, an appeal from an order of acquittal or for enhancement of sentence could be filed either by the State or by the complainant or even by the victim under Section 378 CrPC and in the case of a victim as per proviso to Section 372. In the case of an appeal from any other order i.e. not an order of conviction or acquittal, the High Court can either alter or reverse such order under clause (d). The High Court has also the power to make an amendment or pass any consequential or incidental order that may be just or proper in any of the above situations. However, there are two provisos to Section 386. The High Court has also the power to make an amendment or pass any consequential or incidental order that may be just or proper in any of the above situations. However, there are two provisos to Section 386. The first proviso states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. The second proviso states 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 that order for sentence under appeal. 22 . Some judgments of this Court on the interpretation of Section 386 CrPC may be referred to at this stage. 22.1 . In Sahab Singh v. State of Haryana, (1990) 2 SCC 385 : AIR 1990 SC 1188 (“Sahab Singh”) seven appellants were convicted by the learned Additional Sessions Judge, Sonepat on three counts and sentenced as follows: (a) rigorous imprisonment for one year under Section 148, IPC; (b) rigorous imprisonment for six months under Section 323/149, IPC; and (c) imprisonment for life and a fine of Rs. 200 under Section 302/149, IPC. All the said substantive sentences were directed to run concurrently. The seven appellants preferred an appeal against the order of conviction and sentence passed by the trial court. The High Court while dismissing their appeals clarified that their conviction were on six counts and altered the fine awarded under Section 302/149 IPC from Rs. 200/- to Rs. 5,000/- in respect of each appellant per count, i.e., Rs. 30,000/- per appellant. Being aggrieved by the enhancement of fine the appellant preferred their appeal before this Court on the question of enhancement only. While discussing Sections 374 and 401 CrPC this Court observed that on a co-joint reading of Section 377, 386, 397 and 401, if the State is aggrieved about the inadequacy of the sentence, it can prefer an appeal under Section 377 (1) CrPC. The failure on the part of the State 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 CrPC since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. The failure on the part of the State 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 CrPC 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 wither 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. Discussing the facts of the said case, it was noted that the accused convict had filed their appeals, while no appeal had been filed by the state against the sentence awarded by the trial court on the ground of its inadequacy vis-à- vis Section 302/149 IPC nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 CrPC. If the High Court intended to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 CrPC by issuing notice of enhancement and hearing the convicts on the question of inadequacy of sentence. Without following such procedure, it was not open to the High Court in the appeal filed by the convicts to enhance the sentence by enhancing fine as this would be without jurisdiction. On this ground the appeals were allowed and the enhanced fine imposed by the High Court set aside and fine imposed by the trial court was restored and direction was issued to refund the additional fine, if paid. 22.2 . On this ground the appeals were allowed and the enhanced fine imposed by the High Court set aside and fine imposed by the trial court was restored and direction was issued to refund the additional fine, if paid. 22.2 . In Govind Ramji Jadhav v. State of Maharashtra, (1990) 4 SCC 718 (“Govind Ramji Jadhav”), the question was whether the High Court had jurisdiction to enhance the sentence without issuing notice and affording to the appellant an opportunity of showing cause against such enhancement of the sentence in the absence of an appeal by the State for enhancement of sentence on the ground of inadequacy. The appellant therein had preferred criminal appeal against the conviction and sentence before the Bombay High Court, Aurangabad Bench. The High Court neither issued notice to the appellant therein nor afforded him any opportunity of showing cause against the said enhancement while enhancing the sentence. There was no appeal for the said enhancement of sentence under Section 377 CrPC on the ground of its inadequacy. It was observed that the High Court enjoys the power of enhancing the sentence either in exercise of its revisional jurisdiction under Section 397 read with Section 401 or its appellate jurisdiction under Section 377 read with Section 386(c) CrPC subject to proviso (1) and (2) to Section 386. That while exercising its revisional jurisdiction under Section 397 read with Section 401 CrPC for enhancement of sentence, opportunity must be provided to the accused. Referring to certain judgments of this Court, it was observed that Section 386 CrPC deals with the powers of the appellate court in disposing of an appeal preferred under Section 374 and also in case of an appeal under Sections 377 or 378 CrPC. Under clause (c)(iii) of Section 386 CrPC, the appellate court may in an appeal for enhancement of sentence 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. That in both the above situations, for the power of enhancement of the sentence, the accused must be given a reasonable opportunity to showing cause as contemplated under the first proviso to Section 386 as well under sub-section (3) of Section 377 CrPC. That in both the above situations, for the power of enhancement of the sentence, the accused must be given a reasonable opportunity to showing cause as contemplated under the first proviso to Section 386 as well under sub-section (3) of Section 377 CrPC. Rules of natural justice would mandate issuance of notice to the appellant and affording an opportunity to be heard on the proposed action for enhancement of sentence. Applying the aforesaid principle to the facts of the said case, it was observed that enhancement of sentence from three years to seven years for the conviction under Section 201 IPC was impermissible. Consequently, this Court set aside the High Court's order enhancing the sentence and restored the order of the trial court imposing the sentence of three years rigorous imprisonment and the fine of Rs. 2500/- with the default clause. 22.3 . In State of Himachal Pradesh v. Nirmala Devi, (2017) 7 SCC 262 , the issue was whether the High Court in its appellate jurisdiction under Section 386 CrPC could have set-aside the sentence of imprisonment as imposed by the trial court under Sections 328, 392 and 307 IPC by enhancing the amount of fine to Rs. 30000/- from the fine of Rs. 2000/- as ordered by the trial court. There were two concurring opinions expressed through Dr. A.K. Sikri and Ashok Bhushan, JJ. 22.3.1 . Ashok Bhushan, J. while observing that in the said case the High Court had not altered the finding of guilt and only altered the sentence, considered the meaning and content of the statutory scheme as delineated by the words “altered the nature or the extent of the sentence, but not so as to enhance the same”. The question therein was whether, while altering the sentence, the High Court is empowered to alter the sentence to an extent which could not have been awarded by the trial court after recording the finding of guilt. It was found that the High Court by its judgment had punished the accused only with fine after affirming the finding of guilt recorded, whereas the trial court after holding the accused guilty had sentenced him with rigorous imprisonment of two years with a fine of Rs. 2000/- and in default of payment, further simple imprisonment for a period of three months for each of the offences under Sections 307, 328 and 392 IPC. 2000/- and in default of payment, further simple imprisonment for a period of three months for each of the offences under Sections 307, 328 and 392 IPC. The question was, whether, the High Court could have imposed a sentence only of a fine or it was incumbent on High Court to impose imprisonment as well as fine. After referring to a number of judgments, Ashok Bhushan, J. observed that the punishment provided in the aforesaid sections which contains the imprisonment and fine has to be read to mean that upon the offence being proved under Sections 397, 329 and 392 IPC, the punishment of imprisonment and fine are imperative. 22.3.2 . The trial court had awarded sentence of two years' imprisonment with fine of Rs. 2000/- for each of the aforesaid offences. Thus, it was held that, for the said offences, the punishment of only fine was incorrect as imprisonment is an imperative part of the punishment. It was observed that while exercising jurisdiction under Section 386(b)(iii) CrPC, the appellate court cannot alter the sentence of imprisonment and fine into a sentence only of fine which shall be contrary to the statutory scheme. This would be unfair and unjust. Therefore, setting-aside the sentence of punishment of imposing only fine by the High Court, the appeal filed by the State was allowed. The judgment of the High Court was set-aside and the judgment and sentence awarded by the trial court was restored. The respondent therein was directed to be taken into custody to serve the sentence as imposed by the trial court. 22.4 . In Kumar Ghimrey, the appellant therein assailed the judgment of the Sikkim High Court dismissing his criminal appeal questioning the order of conviction and sentence passed by the Special Judge (POCSO Act, 2012) convicting the appellant therein under Sections 9/10 of the said Act and Section 341 IPC. The appellant therein was sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs. 50,000/- under Sections 9/10 of the POCSO Act, 2012 and under Section 341 IPC the appellant was sentenced to undergo simple imprisonment for one month by the Special Court. Aggrieved by the judgment of the Special Court, the accused filed an appeal before the High Court. 50,000/- under Sections 9/10 of the POCSO Act, 2012 and under Section 341 IPC the appellant was sentenced to undergo simple imprisonment for one month by the Special Court. Aggrieved by the judgment of the Special Court, the accused filed an appeal before the High Court. The High Court dismissed the appeal and the sentence under Sections 9/10 of the POCSO Act was converted into a sentence under Section 5(m) of the POCSO Act read with Section 6 of the said Act and the sentence was enhanced from seven years to ten years with a fine of Rs.5000/-. 22.4.1 . Challenging the enhancement of punishment even when there was no appeal filed seeking such an enhancement and contending that the High Court ought not to have enhanced the sentence, the appellant therein filed the appeal before this Court. While analyzing Section 386(b) CrPC, which deals with an appeal from conviction, this Court noted that the High Court had enhanced the sentence in the appeal filed by the accused challenging his conviction. It was observed by this Court that the High Court has generally the power to enhance the sentence in an appropriate case. The High Court can also exercise its powers under Section 401 CrPC which deals with the power of revision of the High Court in an appropriate case. The High Court under Section 401 CrPC can exercise any of the powers conferred on a Court of Appeal by Sections 386, 390, 391 or a Court of Session by Section 307 CrPC. It was observed that the High Court under Section 386(c) could have enhanced the sentence but the said course is permissible only after giving notice of enhancement. The power of the High Court has been accepted and reiterated by this Court in a large number of cases. 22.4.2 . In this regard, reference was made to Surjit Singh v. State of Punjab, 1984 Supp SCC 518 ; Govind Ramji Jadhav and Surendra Singh Routela v. State of Bihar, (2002) 1 SCC 266 . While discussing these cases, this Court observed that the High Court had rightly affirmed the conviction of the appellant therein. On the facts of the said case, this Court refused to reduce the sentence from seven years to five years as sought by the accused. While discussing these cases, this Court observed that the High Court had rightly affirmed the conviction of the appellant therein. On the facts of the said case, this Court refused to reduce the sentence from seven years to five years as sought by the accused. However, it set-aside the direction of the High Court insofar as it enhanced the sentence from seven years to ten years rigorous imprisonment and the sentence awarded by the Special Judge i.e. seven years under the POCSO Act and one month under Section 341 was maintained. 22.4.3 . We find that the above judgment was a case of enhancement of sentence by the High Court in an appeal filed by the accused and this Court by its judgment maintained the sentence of seven years imposed by the Special Judge while setting aside the direction of the High Court insofar as it enhanced the sentence from seven years to ten years rigorous imprisonment. This Court observed that the High Court enhancing the sentence from seven years to ten years was not in accordance with the procedure prescribed. 23 . The question for consideration in this case is, whether, in an appeal against conviction, the appellate court could have directed enhancement of the sentence in an appeal filed by the accused. Under clause (b) of Section 386 CrPC, firstly, the appellate court can no doubt alter the findings and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial. Secondly, the appellate court can also alter the findings but maintain the sentence. Thirdly, the appellate court can, in an appeal from a conviction, 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. A plain reading of this would imply that in an appeal against conviction which is obviously filed by the accused, the challenge could be two-fold: firstly, it could be against the conviction itself in which case there is a challenge to the sentence also; and secondly, the challenge could be only to the sentence while accepting the conviction. In other words, the challenge would also be only for reduction of the sentence. In other words, the challenge would also be only for reduction of the sentence. The question is, whether, in an appeal challenging the conviction and sentence, the appellate court could, while affirming the conviction enhance the sentence imposed by the trial court by directing that the same had to be with reference to other statutory provisions. There is no doubt that the appellate court while maintaining the conviction can reduce the sentence and grant partial relief to an accused. But in an appeal filed by the appellant-accused, can the appellate court not only affirm the conviction but go a step further and seek to enhance the sentence than what had been imposed by the trial court. It cannot be lost sight of that in an appeal filed by the accused, the appellant-accused is, at best, seeking a reversal of the conviction as well as setting aside of the sentence and the least that the appellant-accused can expect is even while the conviction is affirmed, the sentence could be maintained, if not reduced. 24 . Thus, in an appeal filed by the appellant-accused against the judgment of the conviction and sentence, can the accused be left worse-off while the conviction is affirmed by the appellate court exercising appellate jurisdiction by enhancing the sentence? In such an event, the appellant- accused would be better off, if he either withdraws his appeal or, not to file an appeal at all ! 25 . An appeal by an accused/convict is not only a valuable statutory right but also a constitutional right in criminal cases. In AR Antulay v. RS Nayak, (1988) 2 SCC 602 : AIR 1988 SC 1531 , (“Antulay”), the majority of a seven-Judge Bench (5:2) observed that the creation of a right to an appeal is an act which requires legislative authority, neither an inferior court nor the superior court nor both combined can create such a right, it being one of limitation and extension of jurisdiction. In the said case, it was observed that the withdrawal of the trial under progress before a trial court and its transfer to a Special Court of the High Court resulted in the appellant therein losing his right of appeal. In the said case, it was observed that the withdrawal of the trial under progress before a trial court and its transfer to a Special Court of the High Court resulted in the appellant therein losing his right of appeal. That a right of appeal is an invaluable right, particularly, for an accused who cannot be condemned eternally by a trial judge, without having a right to seek a re-look of the trial court's judgment by a superior or appellate court. 26 . The right to prefer an appeal is not only a statutory right but also a constitutional right in the case of an accused because an accused has a right to not only challenge a judgment on its merits, namely, with respect to the conviction and sentence being imposed on him but also on the procedural aspects of the trial. An accused can also question procedural flaws, impropriety and lapses that may have been committed by the trial court in arriving at the judgment of conviction and imposition of sentence in an appeal filed against the same. It then becomes the duty of the appellate court to consider the appeal from the perspective of the accused- appellant to see if he has a good case on merits and to set aside the judgment of the trial court and acquit the accused or to remand the matter for a re-trial in accordance with law or reduce the sentence while maintaining the conviction or, in the alternative, to dismiss the appeal. 27 . In our considered view, the appellate court, in an appeal filed by the accused cannot, while maintaining the conviction, enhance the sentence. While exercising its appellate jurisdiction at the instance of the convict, the High Court cannot act as a revisional court, particularly, when no appeal or revision has been filed either by the State, victim or complainant for seeking enhancement of sentence against accused. 27.1 . While we have analysed Section 386 CrPC which deals with the right of a party including an accused to file an appeal, we may peruse Section 401 CrPC which deals with the revisional powers of the High Court which is extracted as under: “401. High Court's powers of revision. 27.1 . While we have analysed Section 386 CrPC which deals with the right of a party including an accused to file an appeal, we may peruse Section 401 CrPC which deals with the revisional powers of the High Court which is extracted as under: “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 authorise a High Court to convert a finding of acquittal into one 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.” 27.2 . Sub-section (4) of Section 401 CrPC states that where under the CrPC an appeal could have been filed and has not been filed then no proceeding by way of revision could be entertained at the instance of the party who could have appealed. This means that if a State, complainant or the victim who has the right to file an appeal does not opt to do so then the High Court cannot entertain a revision at their behest. This means that if a State, complainant or the victim who has the right to file an appeal does not opt to do so then the High Court cannot entertain a revision at their behest. Also, if an appeal lies under the CrPC but an application for revision has been made to the High Court by any person under an erroneous belief then the High Court can treat the application for revision as petition of appeal and deal with the same accordingly. What is the pertinent is that under Section 401 CrPC, the High Court is not authorised to convert the findings of acquittal into one of conviction by exercise of revisional jurisdiction. This salutary principle can be extended to also mean that the High Court cannot extend the sentence imposed by a trial court on conviction to enhance sentence in an appeal filed by the accused/convict. Thus, in sum and substance, it is observed that in an appeal filed by the accused seeking setting aside of the conviction of sentence, the High Court cannot exercise its revisional powers and while affirming the conviction, direct for enhancement of sentence where appeal could have been filed by the State, complainant or the victim and has not been filed. Therefore, where an appeal has been filed by the accused challenging the conviction and the sentence, the revisional jurisdiction cannot be exercised by the High Court so as to remand the matter to the trial court for the purpose of enhancement of the sentence. 28 . The difference between an appellate jurisdiction and revisional jurisdiction are well known. The same could be briefly re-visited by bearing in mind the factual aspects of this case. 28.1 . According to Black's Law Dictionary, Ninth Edition, an appeal is a proceeding undertaken to have a decision reconsidered by a higher authority; especially, the submission of a lower court's or agency's decision to a higher court for review and possible reversal. According to P Ramanatha Aiyar, Advanced Law Lexicon, 6th Edition, Volume-1, an appeal is a proceeding where the higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. [James Joseph v. State of Kerala, (2010) 9 SCC 642 , para 19(i)]. 28.2 . [James Joseph v. State of Kerala, (2010) 9 SCC 642 , para 19(i)]. 28.2 . In its natural and ordinary meaning, the word ‘appeal’ means a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. [Bolin Chetia v. Jagdish Bhuyan, (2005) 6 SCC 81 : AIR 2005 SC 1872 ]. An appeal in legal parlance is held to mean the renewal of a cause from an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision. It amounts in essence and pith to a complaint to a higher forum that the decision of the subordinate tribunal is erroneous and therefore liable to be rectified or set right. Chautala Workers Co-op Transport Society Ltd. v. State of Punjab, AIR 1962 Punj 94 : 100. 28.3 . There is an essential distinction between an appeal and a revision. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitation prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power. State of Kerala v. Charia Abdulla & Co, AIR 1965 SC 1585 . 28.4 . The distinction between ‘appellate jurisdiction’ and ‘revisional jurisdiction’ is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as on facts and is invoked by an aggrieved person. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without it being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according to the procedure established by law and according to well defined principles of justice. 28.5 . According to Black's Law Dictionary, Ninth Edition, revision is a re-examination or careful review for correction or improvement. 28.5 . According to Black's Law Dictionary, Ninth Edition, revision is a re-examination or careful review for correction or improvement. A revision can occur only if it will not materially prejudice the accused. According to P Ramanatha Aiyar's Advanced Law Lexicon, 6th Edition, Volume 4, revision is an act of examining again in order to remove any defect or grant relief against the irregular or improper exercise or non-exercise of jurisdiction by a lower Court. The expression ‘revision’ is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression ‘appeal’. [Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259 : 262, para 3] 28.6 . In law, ‘revision’ stands on a different footing from an ‘appeal’. In a revision, the revising authority is not bound to examine the facts for itself but is entitled to give its decision on points of law alone, whereas in an appeal, the whole case is before the appellate authority, which must enter into questions both of fact and law. Also in a revision, the person seeking revision has mere restricted rights than one who prefers an appeal. Whereas an appeal confers statutory vested right on the litigant which accrues the moment the proceedings in question are instituted, the right of revision is merely a discretionary power to be exercised by the revisional court according to the circumstances of the case or exigencies of the situation. A person cannot as a matter of right claim the proceedings to be revised. 29 . We have examined the scope of powers that can be exercised by an appellate court under Section 386 CrPC in juxtaposition with Section 401 CrPC which deal with the appellate and revisional powers of the High Court respectively. We have considered the judicial dicta. On consideration of the judgments of this Court in Nadir Khan and Eknath Shankarrao Mukkawar, we find that even while exercising appellate powers under Section 377 CrPC, there cannot be exclusion of revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases and what is an appropriate case has to be left to the discretion of the High Court. Further, the High Court can suo motu call for the record of proceedings of any inferior criminal court under its jurisdiction and exercise revisional powers. Further, the High Court can suo motu call for the record of proceedings of any inferior criminal court under its jurisdiction and exercise revisional powers. The observations of this Court in Sahab Singh and Govind Ramji Jadhav have to be juxtaposed in light of their peculiar facts and in the background of the observations of this Court in Nadir Khan and Eknath Shankarrao Mukkawar. 29.1 . However, in this case, our focus of attention is whether, in the absence of any appeal or revision filed by the State, a complainant or a victim in a particular case and when the appeal has been filed only by the accused assailing the judgment of conviction and sentence, the High Court can exercise its revisional jurisdiction while dealing with an appeal filed by the accused/convict. In other words, when an accused is seeking setting-aside of a judgment of conviction and sentence, can the High Court, in the absence of there being any challenge to the same from any other quarter, suo motu exercise its revisional power and thereby condemn the accused by awarding an enhancement in his sentence. Even if an opportunity of hearing is given to such an accused/convict, we do not think that the High Court can exercise its revisional jurisdiction under Section 401 CrPC while exercising its appellate jurisdiction in an appeal filed by the accused/convict in the High Court. All that the High Court can do is to set-aside the judgment of conviction and sentence and acquit the accused, or while doing so, order for a retrial or, in the alternative, while maintaining the conviction, reduce the sentence. In other words, in an appeal filed by the accused/convict, the High Court cannot suo motu exercise its revisional jurisdiction and enhance the sentence against the accused while maintaining the conviction. 29.2 . In this regard, we find that the expression “but not so as to enhance the same” in sub-clause (iii) of clause (b) of Section 386 CrPC throws some light on the view we have taken, which reads as under: “386. 29.2 . In this regard, we find that the expression “but not so as to enhance the same” in sub-clause (iii) of clause (b) of Section 386 CrPC throws some light on the view we have taken, which reads as under: “386. Powers of the Appellate Court.— xxx (b) in an appeal from a conviction— xxx (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” Although the said expression “but not so as to enhance the same” is in the context of sub-clause (iii) of clause of (b) of Section 386, the spirit of the said provision must be understood, inasmuch as while maintaining the finding of conviction, the High Court cannot exercise its suo motu revisional jurisdiction under Section 401 CrPC and enhance sentence awarded to the accused/appellant. 29.3 . The trial courts should also be very careful while passing an order of sentence inasmuch as the sentence imposed must be concomitant with the charge(s) framed and the findings arrived at while arriving at a judgment of conviction. If the charges are proved beyond reasonable doubt against an accused then, the sentence following a finding and judgment of conviction must be appropriate to the nature of the charges which are proved by the prosecution. 30 . By placing reliance on Attorney General v. Herman James Sillem, (1864) 10 HLC 704, it was further observed in Antulay that directions issued by this Court earlier with regard to the very same accused dated 16.02.1984 had violated fundamental right guaranteed under Articles 14 and 21 of the Constitution. Article 14 of the Constitution provides, inter alia, that there shall be equal protection of the laws within the territory of India. Moreover, Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. The aforesaid observations in Antulay are apposite to the present case also by way of analogy. Moreover, Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. The aforesaid observations in Antulay are apposite to the present case also by way of analogy. In the instant case, the accused-appellant who had the right to file an appeal against the conviction and sentence could not have been worse-off and be at the receiving end when he had, in fact, sought for setting aside of the conviction and the sentence, by being told by the appellate court (High Court herein) that not only would the conviction be confirmed but the sentence would also be enhanced. 31 . In this regard, it must be noted that for exercise of powers of the appellate court for enhancement of sentence in an appeal filed either by the State or the complainant or the victim, the CrPC provides that the appellate court can reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court competent to try the offence or alter the finding by maintaining the sentence or with or without altering the finding, alter the nature or the extent, of the sentence but not so as to enhance the same. Thus, the power to enhance the sentence can be exercised by the appellate court only in an appeal filed by the State, victim or complainant provided the accused has had an opportunity of showing cause against such enhancement. It is further provided 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 of sentence under appeal. Therefore, even in an appeal for enhancement of sentence, unless the conditions prescribed in the form of provisos are complied with by the appellate court, there cannot be an enhancement of sentence. Obviously in such an appeal for enhancement of sentence, the convict or the accused is the respondent and therefore there cannot be enhancement of sentence unless the accused or convict has been heard. 32 . However, under the scheme of Section 386 vis-à-vis in an appeal for enhancement of sentence there can also be an acquittal of the accused as per sub-clause (i) of clause (c) of Section 386. 32 . However, under the scheme of Section 386 vis-à-vis in an appeal for enhancement of sentence there can also be an acquittal of the accused as per sub-clause (i) of clause (c) of Section 386. But, on the other hand, in an appeal from a conviction, it has been expressly stated that there cannot be enhancement of the sentence. Therefore, while in an appeal for enhancement of sentence filed by the State, the accused can make out a case for acquittal or discharge or retrial, in the case of an appeal from conviction the respondent in such an appeal, namely the State or the victim or the complainant cannot seek enhancement of the sentence than what has been awarded by the trial court. The above distinction can be explained by way of a latin maxim which has been discussed by Ujjal Bhuyan, J., while in the Bombay High Court1, in the following words: “40. In this connection we may refer to the maxim reformatio in peius. It is a latin phrase meaning a change towards the worse i.e., a change for the worse. As a legal expression it means that a lower court judgment is amended by a higher court into a worse one for those appealing it. In many jurisdictions, this practice is forbidden ensuring that an appellant cannot be placed in a worse position as a result of filing an appeal. When the above phrase is prefixed by the words ‘no’ or ‘prohibition’, which would render the maxim as no reformatio in peius or prohibition of reformatio in peius, it would denote a principle of procedure as per which using a remedy available in law should not aggravate the situation of the person who avails the remedy. In other words, a person should not be placed in a worse position as a result of filing an appeal. No reformatio in peius or prohibition of reformatio in peius is a part of fair procedure and thus by extension can also be construed as part of natural justice. It is not only a procedural guarantee but is also a principle of equity.” (underlining by us) 33 . The rationale of the above can be explained in simple language by stating that no appellant by filing an appeal can be worse-off than what he was. It is not only a procedural guarantee but is also a principle of equity.” (underlining by us) 33 . The rationale of the above can be explained in simple language by stating that no appellant by filing an appeal can be worse-off than what he was. That is exactly what we are seeking to reiterate in our judgment having regard to the facts of the present case.” 9 . The Apex Court then in the case of Nagarajan v. State of T.N. : (2025) 8 SCC 331 while considering the view taken in the case of Sachin (supra) has held as under: “14 . We have heard the learned counsel for the respective parties and perused the material on record. This appeal is being disposed of by following the judgment of this Court in Sachin v. State of Maharashtra [Sachin v. State of Maharashtra, (2025) 9 SCC 507 : 2025 SCC OnLine SC 834] dated 21-4-2025. The relevant paragraphs of the said judgment read as under: (SCC paras 40-43) “40. The question for consideration in this case is, whether, in an appeal against conviction, the appellate court could have directed enhancement of the sentence in an appeal filed by the accused. Under clause (b) of Section 386CrPC, firstly, the appellate court can no doubt alter the findings and sentence and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial. Secondly, the appellate court can also alter the findings but maintain the sentence. Thirdly, the appellate court can, in an appeal from a conviction, 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. A plain reading of this would imply that in an appeal against conviction which is obviously filed by the accused, the challenge could be twofold: firstly, it could be against the conviction itself in which case there is a challenge to the sentence also; and secondly, the challenge could be only to the sentence while accepting the conviction. In other words, the challenge would also be only for reduction of the sentence. In other words, the challenge would also be only for reduction of the sentence. The question is, whether, in an appeal challenging the conviction and sentence, the appellate court could, while affirming the conviction enhance the sentence imposed by the trial court by directing that the same had to be with reference to other statutory provisions. 41. There is no doubt that the appellate court while maintaining the conviction can reduce the sentence and grant partial relief to an accused. But in an appeal filed by the appellant-accused, can the appellate court not only affirm the conviction but go a step further and seek to enhance the sentence than what has been imposed by the trial court. It cannot be lost sight of that in an appeal filed by the accused, the appellant-accused is, at best, seeking a reversal of the conviction as well as setting aside of the sentence and the least that the appellant-accused can expect is even while the conviction is affirmed, the sentence could be maintained, if not reduced. 42. Thus, in an appeal filed by the appellant- accused against the judgment of the conviction and sentence, can the accused be left worse off while the conviction is affirmed by the appellate court exercising appellate jurisdiction by enhancing the sentence? In such an event, the appellant-accused would be better off, if he either withdraws his appeal or, not to file an appeal at all! But an appeal is not only a valuable statutory right but also a constitutional right in criminal cases.” 15 . That a right of appeal is an invaluable right, particularly for an accused who cannot be condemned eternally by a trial Judge, without having a right to seek a relook of the trial court's judgment by a superior or appellate court. The right to prefer an appeal is not only a statutory right but also a constitutional right in the case of an accused. This is because an accused has a right to not only challenge a judgment on its merits, namely, with respect to the conviction and sentence being imposed on him, but also on the procedural aspects of the trial. 16 . An accused can question procedural flaws, impropriety and lapses that may have been committed by the trial court in arriving at the judgment of conviction and imposition of sentence in an appeal filed against the same. 16 . An accused can question procedural flaws, impropriety and lapses that may have been committed by the trial court in arriving at the judgment of conviction and imposition of sentence in an appeal filed against the same. It then becomes the duty of the appellate court to consider the appeal from the perspective of the appellant-accused therein to see if he has a good case on merits, and to set aside the judgment of the trial court and acquit the accused, or to remand the matter for a re-trial in accordance with law, or to reduce the sentence while maintaining the conviction or, in the alternative, to dismiss the appeal. 17 . In our considered view, the appellate court in an appeal filed by the accused cannot while maintaining the conviction enhance the sentence. While exercising its appellate jurisdiction, the High Court cannot act as a Revisional Court, particularly, when no appeal or revision has been filed either by the State, the victim or complainant for seeking enhancement of sentence against the accused. 18 . In the aforesaid judgment in Sachin v. State of Maharashtra [Sachin v. State of Maharashtra, (2025) 9 SCC 507 : 2025 SCC OnLine SC 834] , we have analysed Section 386CrPC which deals with the right of a party including an accused to file an appeal, we may peruse Section 401CrPC which deals with the revisional powers of the High Court and which is extracted as under: “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 authorise a High Court to convert a finding of acquittal into one conviction. (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 authorise a High Court to convert a finding of acquittal into one 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.” 19 . Sub-section (4) of Section 401CrPC states that where under CrPC an appeal could have been filed and has not been filed, then no proceeding by way of revision could be entertained at the instance of the party who could have appealed. This means if a State, complainant or the victim who has the right to file an appeal do not opt to do so, then the High Court cannot entertain a revision at its behest. Also, if an appeal lies under CrPC but an application for revision has been made to the High Court by any person under an erroneous belief, then the High Court can treat the application for revision as petition of appeal and deal with the same accordingly. 20 . What is pertinent is that under Section 401CrPC, the High Court is not authorised to convert the findings of acquittal into one of conviction by exercise of revisional jurisdiction. This salutary principle can be extended to also mean that the High Court cannot enhance the sentence imposed by a trial court on conviction in an appeal filed by the accused/convict. What is pertinent is that under Section 401CrPC, the High Court is not authorised to convert the findings of acquittal into one of conviction by exercise of revisional jurisdiction. This salutary principle can be extended to also mean that the High Court cannot enhance the sentence imposed by a trial court on conviction in an appeal filed by the accused/convict. Thus, in sum and substance, it can be observed that in an appeal filed by the accused seeking setting aside of the conviction of sentence, the High Court cannot exercise its revisional powers and while affirming the conviction direct for enhancement of sentence, when actually appeal could have been filed by the State, complainant or the victim and has not been filed. 21 . Therefore, where an appeal has been filed by the accused challenging the conviction and the sentence, the revisional jurisdiction cannot be exercised by the High Court so as to remand the matter to the trial court for the purpose of enhancement of the sentence. 22 . However, in this case, our focus of attention is whether, in the absence of any appeal or revision filed by the State, a complainant or a victim in a particular case and when the appeal has been filed only by the accused/convict assailing the judgment of conviction and sentence, the High Court can exercise its revisional jurisdiction to enhance the sentence. In other words, when an accused is seeking setting aside of a judgment of conviction and sentence, can the High Court, in the absence of there being any challenge to the same from any other quarter, suo motu exercise its revisional power and thereby condemn the accused by awarding an enhancement in his sentence. (emphasis supplied) 23 . Even if an opportunity of hearing is given to such an accused/convict, we do not think that the High Court can exercise its revisional jurisdiction under Section 401CrPC while exercising its appellate jurisdiction in an appeal filed by the accused/convict in the High Court. All that the High Court can do is to set aside the judgment of conviction and sentence and acquit the accused, or while doing so, order for a retrial, or in the alternative, while maintaining the conviction, reduce the sentence. All that the High Court can do is to set aside the judgment of conviction and sentence and acquit the accused, or while doing so, order for a retrial, or in the alternative, while maintaining the conviction, reduce the sentence. In other words, in an appeal filed only by the accused/convict, the High Court cannot suo motu exercise its revisional jurisdiction and enhance the sentence against the accused while maintaining the conviction. (emphasis supplied) 24 . In this regard, we find that the expression “but not so as to enhance the same” in sub-clause (iii) of clause (b) of Section 386CrPC throws some light on the view we have taken, which reads as under: “ 386 . Powers of the appellate court.— *** (b) in an appeal from a conviction— *** (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.” 25 . Although the said expression “but not so as to enhance the same” is in the context of sub-clause (iii) of clause (b) of Section 386 CrPC, the spirit of the said provision must be understood, inasmuch as while maintaining the finding of conviction, the High Court cannot exercise its revisional jurisdiction under Section 401CrPC and enhance sentence awarded to the appellant-accused. 26 . In this context, we also observe that the trial court should also be very careful while passing an order of sentence inasmuch as the sentence imposed must be concomitant with the charge(s) framed and the findings arrived at while arriving at a judgment of conviction. If the charges are proved beyond reasonable doubt against an accused, then the sentence following a finding and judgment of conviction must be appropriate to the nature of the charge(s) which are proved by the prosecution. 27 . If the charges are proved beyond reasonable doubt against an accused, then the sentence following a finding and judgment of conviction must be appropriate to the nature of the charge(s) which are proved by the prosecution. 27 . In this regard, it must be noted that for exercise of powers of the appellate court for enhancement of sentence in an appeal filed either by the State or the complainant or the victim, CrPC provides that the appellate court can 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 alter the finding by maintaining the sentence, or with or without altering the finding, alter the nature or the extent, of the sentence so as to enhance or reduce the same. Thus, the power to enhance the sentence can be exercised by the appellate court only in an appeal filed by the State, victim or complainant, provided the accused has had an opportunity of showing cause against such enhancement. 28 . It is further provided 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 of sentence under appeal. Therefore, in an appeal for enhancement of sentence filed by the State, etc. unless the conditions prescribed in the form of provisos to Section 386CrPC are complied with by the appellate court, there cannot be an enhancement of sentence. 29 . Obviously in such an appeal for enhancement of sentence, the convict or the accused is the respondent and therefore there cannot be enhancement of sentence unless the accused or convict has been heard. However, under the scheme of Section 386CrPC vis-à-vis in an appeal for enhancement of sentence, there can also be an acquittal of the accused as per sub-clause (i) of clause (c) of Section 386CrPC. But, on the other hand, in an appeal from a conviction, it has been expressly stated that there cannot be enhancement of the sentence. However, under the scheme of Section 386CrPC vis-à-vis in an appeal for enhancement of sentence, there can also be an acquittal of the accused as per sub-clause (i) of clause (c) of Section 386CrPC. But, on the other hand, in an appeal from a conviction, it has been expressly stated that there cannot be enhancement of the sentence. Therefore, while in an appeal for enhancement of sentence filed by the State, the accused can make out a case for acquittal or discharge or retrial, in the case of an appeal from conviction, the respondent in such an appeal, namely, the State or the victim or the complainant, cannot seek enhancement of the sentence than what has been awarded by the trial court in the absence of filing any appeal or revision. (emphasis supplied) 30 . The above distinction can be explained by way of a Latin maxim which has been discussed by Ujjal Bhuyan, J., while in the Bombay High Court, in Jyoti Plastic Works (P) Ltd. v. Union of India [Jyoti Plastic Works (P) Ltd. v. Union of India, (2021) 15 GSTR-OL 453 : 2020 SCC OnLine Bom 2276] , in the following words: (SCC OnLine Bom para 40) “40. In this connection we may refer to the maxim reformatio in peius. It is a Latin phrase meaning a change towards the worse i.e. a change for the worse. As a legal expression it means that a lower court judgment is amended by a higher court into a worse one for those appealing it. In many jurisdictions, this practice is forbidden ensuring that an appellant cannot be placed in a worse position as a result of filing an appeal. When the above phrase is prefixed by the words “no” or “prohibition”, which would render the maxim as no reformatio in peius or prohibition of reformatio in peius, it would denote a principle of procedure as per which using a remedy available in law should not aggravate the situation of the person who avails the remedy. In other words, a person should not be placed in a worse position as a result of filing an appeal. No reformatio in peius or prohibition of reformatio in peius is a part of fair procedure and, thus, by extension can also be construed as part of natural justice. In other words, a person should not be placed in a worse position as a result of filing an appeal. No reformatio in peius or prohibition of reformatio in peius is a part of fair procedure and, thus, by extension can also be construed as part of natural justice. It is not only a procedural guarantee but is also a principle of equity.” (emphasis supplied) 31 . The rationale of the above can be explained in simple language by stating that no appellant by filing an appeal can be worse off than what he was. That is exactly what we are seeking to reiterate in our judgment having regard to the facts of the present case.” 10 . It is submitted that as such the judgment and order of the Appellate Court is totally perverse and illegal and deserves to be set aside. 11 . The second submission as put forward by learned counsel for the revisionist is that notice under Section 13 (2) of the Act has not been served upon the revisionist. It is submitted that although Hari Mohan Verma the Food Clerk in the office of CMO has been examined as PW-2 before the trial court but he only stated of sending the report of the Food Analyst along with the sanction order of the CMO to the accused but there is nothing on record to show that the same has been received by the accused. It is submitted that the law on this issue is also well settled. It is submitted that as per the settled law as has been held by the Apex Court in the case of Vijendra Vs. State of Uttar Pradesh ) : 2020 (15) SCC 763 and Narayana Prasad Sahu Vs. State of Madhya Pradesh : 2022 (1) SCC 87 it is held that mere dispatch of report to the accused under Section 13 (2) of the Act is not sufficient compliance with the requirement of Sub-section (2) of Section 13 and the report must be served on the accused which the prosecution has not proved. It is submitted that in view of the same, the judgment and order of the trial court also deserves to be set aside as there is no finding recorded by the trial court that the said notice under Section 13 (2) of the Act has been received by the accused. It is submitted that in view of the same, the judgment and order of the trial court also deserves to be set aside as there is no finding recorded by the trial court that the said notice under Section 13 (2) of the Act has been received by the accused. It is submitted that the trial court in a cryptic manner dealt with the said issue has not returned a finding that notice under Section 13 (2) has been received by the revisionist accused. It is submitted that as such the judgment and order of the appellate court also be set aside. 12 . Per contra, learned counsel for the State opposed the revision and the arguments therein but in so far as the question of enhancement of sentence by the Appellate Court is concerned had conceded that there was no appeal filed by the complainant or the State for enhancement before the Appellate Court and it was only in an appeal filed by the accused convict against his conviction the Appellate Court has enhanced the sentence. Further with regard to the argument of non receipt of notice under Section 13 (2) of the Act is concerned, learned counsel for the State also could not dispute the fact that there is nothing on record to show that the notice under Section 13 (2) has been received by the revisionist accused and also any finding has been returned by the trial court regarding receipt of the notice by the revisionist. 13 . After having heard learned counsels for the parties and perusing the records, it is evident that the revisionist was convicted by the trial court for offence under Section 7 /16 of Prevention of Food Adulteration Act, 1954 and sentenced to six months imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to two months additional imprisonment. He preferred an appeal against the said judgment and order of conviction which was dismissed by the Appellate Court but the sentence awarded by the trial court was enhanced by the Appellate Court of two years. This revision has thus been filed before this Court. 14 . 1,000/- and in default of payment of fine to two months additional imprisonment. He preferred an appeal against the said judgment and order of conviction which was dismissed by the Appellate Court but the sentence awarded by the trial court was enhanced by the Appellate Court of two years. This revision has thus been filed before this Court. 14 . In so far as the power of the Appellate Court for enhancement of sentence is concerned, the fact which is not disputed is that the enhancement of sentence has been done by the Appellate Court on an appeal filed by a convict accused against his conviction, there is no appeal filed for enhancement either by the State or the complainant. The law is well settled that in an appeal against conviction by an accused appellant cannot enhance the sentence without there being an appeal filed by the State or the complainant for its enhancement. Thus the judgment and order of the Appellate Court is patently illegal and deserves to be set aside and is hereby by set aside. 15 . In so far as the judgment and order of the trial court is concerned, notice under Section 13 (2) of the Prevention of Food Adulteration Act is stated to be sent to the accused revisionist. There is no finding by the trial court regarding receipt of the same by him. Even there is no evidence by any of the witnesses that notice has been received by him. In the absence of their being any proof of delivery of the said report to the accused the valuable right available to the accused to seek further test of the sample by the Central Food Laboratory stands defeated. The same has been held by the Apex Court in the cases of Vijendra (supra) and Narayana Prasad Sahu (supra). The judgment and order of the trial court thus also deserves to be set aside and is hereby set aside. . 16 . In view of the discussions therein above, the present revision is allowed . The judgments and orders impugned herein are set aside. The revisionist Maiyya Deen is acquitted of the charge levelled against him. The revisionist is on bail. He need not surrender unless wanted in any other case. His bail bond is cancelled and sureties discharged. 17 . Pending application(s), if any, stands disposed of. 18 . The judgments and orders impugned herein are set aside. The revisionist Maiyya Deen is acquitted of the charge levelled against him. The revisionist is on bail. He need not surrender unless wanted in any other case. His bail bond is cancelled and sureties discharged. 17 . Pending application(s), if any, stands disposed of. 18 . Office is directed to transmit the copy of this judgement along with the trial court records to the concerned trial court forthwith for its compliance and necessary action.