2003 JTR(SC) 923
2003 11 AIC 388 ; 2003 4 AICLR 601 ; 2003 AIR(SC) 3318 ; 2003 AIR(SCW) 4712 ; 2003 AllMR(Cri)(SC) 2362 ; 2004 1 ApexCJ(SC) 64 ; 2004 1 APLJ 38 ; 2003 4 CCR(SC) 76 ; 2004 1 CriCC 727 ; 2003 4 Crimes(SC) 96 ; 2003 CrLJ 4964 ; 2003 3 EastCrC(SC) 185 ; 2004 ILR(Kar) 169 ; 2003 3 JCC 1653 ; 2003 Supp1 JT 583 ; 2004 1 MPWN 150 ; 2005 3 RCR(Cri) 11 ; 2003 7 Scale 624 ; 2003 8 SCC 625 ; 2004 SCC(Cri) 48 ; 2003 2 WLC 646 ; 2003 KHC 1628 ; 2003 6 Supreme 719
2003(6) Supreme 719
SUPREME COURT OF INDIA
(From Madras High Court)
N. Santosh Hedge & B.P. Singh, JJ.
K. Pandurangan etc. -Appellants
versus
S.S.R. Velusamy & Anr. -Respondents
Criminal Appeal No. 1682 of 1996
With
Criminal Appeal Nos. 1684/96, 1683/96 and 1685/96
Decided on 18-9-2003
Counsel for the Parties :
For the Appellants : M.N. Krishnamani, Sr. Advocate, T. Raja and Madasamy, S. Muralidhar, Advocates.
For the Respondents : A.T.M. Ranga Ramanujam, Sr. Advocate, P.N. Ramalingam, V. Balaji and M.T. George, Advocates.
IMPORTANT POINTS
1. Right to grant remissions is governed by provisions of Section 432 Cr.P.C. which vests power with appropriate Government and not in any Court.
2. Revision at instance of complainant is maintainable.
Act Referred :CRIMINAL PROCEDURE CODE : S.374, S.420, S.432, S.397
(A) The appeals pertain to offences punishable under Sections 420, 477(a), 468, 420 read with Section 109, 409 read with 109, and 468 read with 109 of the Indian Penal Code. The trial court convicted the appellants and awarded a maximum sentence of 5 years rigorous imprisonment. The appellate court confirmed the conviction but reduced the sentence to 2 years and granted remission, a direction that was set aside by the High Court exercising its revisionary powers under Section 432 of the Code of Criminal Procedure, 1973, restoring the trial courts sentence of 5 years. The central legal issue revolves around the jurisdiction of the appellate court to grant remission and the right of the appellants to be heard on the merits, with the High Courts revision being upheld as lawful while the remission granted by the lower appellate court was held to be without jurisdiction.
(B) The core legal principles include: (i) The power of revision under Section 432 CrPC is vested exclusively in the appropriate Government and not in any court; (ii) Remission of sentence cannot be granted by an appellate court but only by the Government, and is subject to conditions such as the accused being in custody at the time of the order; (iii) Denial of a statutory right of appeal on merits can amount to a denial of procedure established by law under Article 21 and violates the guarantee of equal protection under Article 14; (iv) A higher appellate court must consider the merits of the case where a first appellate court has not done so, ensuring that appellants are not deprived of their right to have factual findings reviewed.
Facts of the case:
The appellants were tried before the VIth Additional Assistant Sessions Judge, Thiruchirapalli, and convicted under Sections 420 and 420 read with Section 109 IPC, among other charges, receiving a maximum sentence of 5 years rigorous imprisonment. An appeal was filed, the appellate court confirmed the conviction but reduced the sentence to 2 years and granted remission. The High Court allowed a revision by the complainant, held that the appellate court lacked jurisdiction to grant remission, set aside the remission order, and restored the original sentence of 5 years. The appellants then challenged the High Courts judgment before this Court, arguing that they were denied an opportunity to be heard on the merits.
Findings of Court:
The court held that the High Court was correct in entertaining the revision at the instance of an outsider, as revision is a suo motu power of the High Court under CrPC. It found that the lower appellate court had no jurisdiction to grant remission under Section 432 CrPC, as remission is a function of the Government and the factual position did not satisfy the conditions precedent. The court also held that the lower appellate court failed to consider the factual aspects of the case, thereby denying the appellants the benefit of a statutory appeal on merits, which constituted a denial of fair procedure under Article 21 and Article 14.
Issues:
The key issues were: (i) Whether the High Court had jurisdiction to entertain the revision filed by the complainant; (ii) Whether the lower appellate court had the power to grant remission under the relevant Government notifications; and (iii) Whether the appellants were entitled to a hearing on the merits of their case before sentence was enhanced or remission denied.
Ratio Decidendi:
The court ruled that revision is a High Courts statutory power that can be invoked at its instance or at the instance of an outsider, affirming the High Courts jurisdiction. It held that remission under Section 432 CrPC cannot be granted by an appellate court, as the power rests with the Government and is conditioned on the accused being in custody. Furthermore, the denial of a factual hearing by the first appellate court violated the right to a fair procedure under Article 21, necessitating a remand for a full appeal on merits.
Result:
The appeals are allowed, the judgment of the High Court is set aside, and the matter is remanded to the Court of the Sessions Judge at Thiruchirapalli to dispose of all appeals on merits within three months.
(A) The appeals pertain to offences punishable under Sections 420, 477(a), 468, 420 read with Section 109, 409 read with 109, and 468 read with 109 of the Indian Penal Code. The trial court convicted the appellants and awarded a maximum sentence of 5 years rigorous imprisonment. The appellate court confirmed the conviction but reduced the sentence to 2 years and granted remission, a direction that was set aside by the High Court exercising its revisionary powers under Section 432 of the Code of Criminal Procedure, 1973, restoring the trial courts sentence of 5 years. The central legal issue revolves around the jurisdiction of the appellate court to grant remission and the right of the appellants to be heard on the merits, with the High Courts revision being upheld as lawful while the remission granted by the lower appellate court was held to be without jurisdiction.
(B) The core legal principles include: (i) The power of revision under Section 432 CrPC is vested exclusively in the appropriate Government and not in any court; (ii) Remission of sentence cannot be granted by an appellate court but only by the Government, and is subject to conditions such as the accused being in custody at the time of the order; (iii) Denial of a statutory right of appeal on merits can amount to a denial of procedure established by law under Article 21 and violates the guarantee of equal protection under Article 14; (iv) A higher appellate court must consider the merits of the case where a first appellate court has not done so, ensuring that appellants are not deprived of their right to have factual findings reviewed.
Facts of the case:
The appellants were tried before the VIth Additional Assistant Sessions Judge, Thiruchirapalli, and convicted under Sections 420 and 420 read with Section 109 IPC, among other charges, receiving a maximum sentence of 5 years rigorous imprisonment. An appeal was filed, the appellate court confirmed the conviction but reduced the sentence to 2 years and granted remission. The High Court allowed a revision by the complainant, held that the appellate court lacked jurisdiction to grant remission, set aside the remission order, and restored the original sentence of 5 years. The appellants then challenged the High Courts judgment before this Court, arguing that they were denied an opportunity to be heard on the merits.
Findings of Court:
The court held that the High Court was correct in entertaining the revision at the instance of an outsider, as revision is a suo motu power of the High Court under CrPC. It found that the lower appellate court had no jurisdiction to grant remission under Section 432 CrPC, as remission is a function of the Government and the factual position did not satisfy the conditions precedent. The court also held that the lower appellate court failed to consider the factual aspects of the case, thereby denying the appellants the benefit of a statutory appeal on merits, which constituted a denial of fair procedure under Article 21 and Article 14.
Issues:
The key issues were: (i) Whether the High Court had jurisdiction to entertain the revision filed by the complainant; (ii) Whether the lower appellate court had the power to grant remission under the relevant Government notifications; and (iii) Whether the appellants were entitled to a hearing on the merits of their case before sentence was enhanced or remission denied.
Ratio Decidendi:
The court ruled that revision is a High Courts statutory power that can be invoked at its instance or at the instance of an outsider, affirming the High Courts jurisdiction. It held that remission under Section 432 CrPC cannot be granted by an appellate court, as the power rests with the Government and is conditioned on the accused being in custody. Furthermore, the denial of a factual hearing by the first appellate court violated the right to a fair procedure under Article 21, necessitating a remand for a full appeal on merits.
Result:
The appeals are allowed, the judgment of the High Court is set aside, and the matter is remanded to the Court of the Sessions Judge at Thiruchirapalli to dispose of all appeals on merits within three months.
JUDGMENT
Santosh Hegde, J.-In these appeals, the appellants were charged for offences punishable under Sections 420, 477(a), 468, 420 read with Section 109, 409 read with 109 and 468 read with 109 IPC. The trial Court, namely, the VIth Additional Assistant Sessions Judge, Thiruchirapalli, convicted the appellants under various sections, among them, for offences punishable under Section 420 and Section 420 read with 109 IPC. It awarded a maximum sentence of 5 years R.I.
2. On an appeal filed by the convicted accused, the appellate court confirmed the conviction recorded by the trial Court but reduced the sentence to 2-1/2 years each and further acting purportedly under various GOs. of the Government, it granted remission of the said sentence of 2-1/2 years also.
3. In a revision filed by the complainant, the High Court of Judicature at Madras considering the question of jurisdiction of the court to remit the sentence under the various G.Os. came to the conclusion that such a remission could not have been granted by the court, hence, allowed the revision. It also came to the conclusion that there is no need to remit the matter back to the lower appellate court, accordingly, set aside the impugned judgment of the lower appellate court and restored the judgment of the trial court both in regard to conviction and sentence. The effect of the said judgment was that the appellants have to undergo the sentence of 5 years awarded by the trial court.
4. In these appeals, Shri M.N. Krishnamani, learned senior counsel appearing for the appellants contended that the High Court was in error in entertaining the revision at the instance of the complainant. He also submitted that the High Court was in error in setting aside the judgment of the lower appellate court which granted the appellants benefit of remission. Alternatively he contended that neither the lower appellate court nor the High Court have gone into the merits of the case on facts, hence, they have been denied the benefit of appeal which is otherwise provided under the Criminal Procedure Code.
5. While Shri A.T.M. Ranga Ramanujam, learned senior counsel appearing for the State strongly supported the judgment of the High Court and contended that from the purport of the order of the lower appellate court, it is clear that the court had applied its mind in regard to the facts of the case before confirming the conviction. He also submitted that it is possible that the counsel appearing for the appellants before the lower appellate court did not address any argument on merits, therefore, the complaint of the learned counsel for the appellants that the appellants did not get benefit of the appeal on facts is not correct. He supported the finding of the High Court on the question of grant of remission which he submitted, was without jurisdiction.
6. So far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of Code of Criminal Procedure, 1973, the court has suo motu power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan vs. The State (Delhi Administration), (AIR 1976 SC 2205).
7. The second question that has come up for our consideration in this case pertains to the right of the lower appellate court to grant various remissions under various notifications issued by the State, reference to which has been made by the lower appellate court in its judgment. The right to grant remission is governed by the provisions of Section 432 of the Code of Criminal Procedure which vests the said power with appropriate Government and not in any court. Even that power is subject to conditions enumerated in that Section and one such condition is that an accused person who is being granted remission of sentence will have to be in custody, when the decision to grant remission is made by the Government concerned. See proviso to Section 432(5) of the Code which was not the factual position in this case apart from the fact the Court has no jurisdiction of remission of sentence under Section 432 of the Code. Therefore, in our opinion, the first appellate court was not justified in granting the remission.
8. This leaves us to consider the last question argued before us by the learned counsel for the appellant that the appellants had a right of appeal on facts conferred statutorily by the Code of Criminal Procedure wherein they could have convinced the appellate court that the findings of the court below are erroneous and not based on facts. He pointed out from the judgment of the lower appellate Court that there has been no such consideration by the said court. He submitted that if we are not inclined to accept his argument in regard to the right of the appellate court to grant remission, then he is entitled to the benefit of hearing before the appellate court on merits of the case. On facts, he submitted that the contention of the learned counsel for the State that there was no argument addressed by his counterpart on merits of the case before the lower appellate court is not correct and the same is also not so reflected in the judgment of the said court. We have also perused the said judgment and we do not think there is any application of mind in regard to the factual aspect of the case by the lower appellate court which has merely proceeded to consider the quantum of sentence and grant of remission. Apart from the fact that right of appeal is statutorily provided by the Code, a Constitution Bench of this Court in the case of A.R. Antulay vs. R.S. Nayak & Anr. (1988 2 SCC 602) had held that deprivation of one statutory right of appeal would amount to denial of procedure established by law under Article 21, and further such denial violates the guarantee of equal protection of law under article 14 of the Constitution. Placing reliance on the said judgment of this court, we are of the opinion that since the lower appellate court, which was the first court of appeal, has not considered the factual aspect of the case while considering the appeal, we think the appellants have been denied an opportunity of agitating their case on facts against the judgment of the trial court. In such circumstances, we think the prayer of the learned counsel is justified. Therefore, we allow these appeals, set aside the impugned judgment of the High Court and remand the matter back to the Court of the Sessions Judge at Thiruchirapalli who will hear all appeals which were filed against the judgment and conviction made by the VIth Additional Assistant Sessions Judge, Thiruchirapalli in Calender Case No. 2 of 1988 and other connected matters. Since the matter is very old, we think it appropriate to direct the said appellate court to dispose of the same on merits within three months from the receipt of the records.
Ordered accordingly.
Appeal allowed. Matter remanded to 1st appellate Court.
******************