1990 JTR(SC) 143
1990 1 AICLR 998 ; 1990 92 BomLR 215 ; 1990 CriLR 307 ; 1990 2 Crimes(SC) 256 ; 1990 1 CurLJ 662 ; 1990 2 JT 23 ; 1990 1 Scale 614 ; 1990 4 SCC 718 ; 1991 SCC(Cri) 33 ; 1990 1 SCR 855 ; 1990 KHC 1013
SUPREME COURT OF INDIA
S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.
GOVIND RAMJI JADHAV
Versus
STATE OF MAHARASHTRA
Criminal Appeal No. 197 of 1990{From the Judgment and Order dated September 15, 1989/September 18, 1989 of the Bombay High Court in Crl. A. No. 284 of 1987}, decided on March 7, 1990
Advocates appeared :
Satish Vig, Advocate for the Appellant;
A.S. Bhasme, Advocate, for the Respondent.
Act Referred :CRIMINAL PROCEDURE CODE : S.386(c), S.377, S.401, S.397, S.235(2)
(A) The relevant statutory provisions include Section 386(c), Section 377, Section 401, Section 397, and Section 235(2) of the Code of Criminal Procedure. Section 386(c) delineates the power of an appellate court to alter the nature or extent of a sentence, including enhancement or reduction, when hearing an appeal under Section 377 or Section 378, while prohibiting enhancement on appeal from a conviction. Section 377 empowers the State Government or Central Government to appeal against a sentence on grounds of inadequacy, directing the public prosecutor to present an appeal to the High Court. Section 401 confers revisional jurisdiction on the High Court to call for records and exercise supervisory control over criminal proceedings. Section 397 grants the High Court the power to exercise its revisional jurisdiction and, importantly, permits it to act in a supplementary capacity as a court of appeal for sentence enhancement. Section 235(2) relates to the procedural aspects of appeals and revisions. In this case, these sections intersect where the High Court, while exercising revisional powers under Section 397 read with Section 401, enhanced the sentence without issuing notice or providing an opportunity to be heard to the appellant, and without a state appeal under Section 377 on grounds of inadequacy.
(B) Key legal principles include that the High Court possesses inherent revisional powers under Section 401 CrPC, which can be exercised alongside appellate powers under Section 386(c) for sentence enhancement. Any enhancement of sentence, whether in appellate or revisional proceedings, must comply with natural justice principles, mandating reasonable notice and an opportunity for the accused to be heard. The State may appeal against inadequate sentencing under Section 377, but the High Court can also suo motu enhance sentences in appropriate cases, provided procedural fairness is observed.
Facts of the case:
The accused were convicted for murder in furtherance of a common intention and for causing disappearance of evidence to evade punishment, under Sections 302 and 201 read with Section 34 IPC. They were sentenced to life imprisonment and rigorous imprisonment with a fine. In Criminal Appeal No. 284 of 1987, the High Court set aside convictions under Sections 302 and 201 but confirmed the conviction under Section 201 and enhanced the sentence to 7 years rigorous imprisonment. This enhancement was done without issuing notice to the appellant, without affording an opportunity to show cause, and in the absence of a state appeal under Section 377 CrPC on grounds of inadequacy.
Findings of Court:
The High Court was found to have enhanced the sentence in violation of the prescribed procedure under Sections 397, 401, and 386(c) of the CrPC, and in defiance of the rules of natural justice. The enhancement from 3 years to 7 years rigorous imprisonment was deemed impermissible as the accused were not given notice or hearing. The absence of a state appeal under Section 377 further precluded the High Court from acting suo motu for enhancement.
Issues:
Whether the High Court had jurisdiction to enhance the sentence without issuing notice to the appellant and without an appeal by the State under Section 377 CrPC, and whether such enhancement complied with the principles of natural justice and the procedure laid down under the Code of Criminal Procedure.
Ratio Decidendi:
The High Courts enhancement of sentence in a criminal case, whether in appellate or revisional jurisdiction, requires the accused to be given reasonable notice and an opportunity to be heard. Enhancement without such procedure is a violation of natural justice and the Code of Criminal Procedure, rendering it invalid. The High Court cannot enhance a sentence in the absence of a state appeal under Section 377 or in revision under Section 401 without adhering to these procedural safeguards.
Result:
The appeal is allowed. The order enhancing the sentence to 7 years rigorous imprisonment is set aside. The trial courts sentence of 3 years rigorous imprisonment and a fine of Rs. 2500 with default clause is restored.
(A) The relevant statutory provisions include Section 386(c), Section 377, Section 401, Section 397, and Section 235(2) of the Code of Criminal Procedure. Section 386(c) delineates the power of an appellate court to alter the nature or extent of a sentence, including enhancement or reduction, when hearing an appeal under Section 377 or Section 378, while prohibiting enhancement on appeal from a conviction. Section 377 empowers the State Government or Central Government to appeal against a sentence on grounds of inadequacy, directing the public prosecutor to present an appeal to the High Court. Section 401 confers revisional jurisdiction on the High Court to call for records and exercise supervisory control over criminal proceedings. Section 397 grants the High Court the power to exercise its revisional jurisdiction and, importantly, permits it to act in a supplementary capacity as a court of appeal for sentence enhancement. Section 235(2) relates to the procedural aspects of appeals and revisions. In this case, these sections intersect where the High Court, while exercising revisional powers under Section 397 read with Section 401, enhanced the sentence without issuing notice or providing an opportunity to be heard to the appellant, and without a state appeal under Section 377 on grounds of inadequacy.
(B) Key legal principles include that the High Court possesses inherent revisional powers under Section 401 CrPC, which can be exercised alongside appellate powers under Section 386(c) for sentence enhancement. Any enhancement of sentence, whether in appellate or revisional proceedings, must comply with natural justice principles, mandating reasonable notice and an opportunity for the accused to be heard. The State may appeal against inadequate sentencing under Section 377, but the High Court can also suo motu enhance sentences in appropriate cases, provided procedural fairness is observed.
Facts of the case:
The accused were convicted for murder in furtherance of a common intention and for causing disappearance of evidence to evade punishment, under Sections 302 and 201 read with Section 34 IPC. They were sentenced to life imprisonment and rigorous imprisonment with a fine. In Criminal Appeal No. 284 of 1987, the High Court set aside convictions under Sections 302 and 201 but confirmed the conviction under Section 201 and enhanced the sentence to 7 years rigorous imprisonment. This enhancement was done without issuing notice to the appellant, without affording an opportunity to show cause, and in the absence of a state appeal under Section 377 CrPC on grounds of inadequacy.
Findings of Court:
The High Court was found to have enhanced the sentence in violation of the prescribed procedure under Sections 397, 401, and 386(c) of the CrPC, and in defiance of the rules of natural justice. The enhancement from 3 years to 7 years rigorous imprisonment was deemed impermissible as the accused were not given notice or hearing. The absence of a state appeal under Section 377 further precluded the High Court from acting suo motu for enhancement.
Issues:
Whether the High Court had jurisdiction to enhance the sentence without issuing notice to the appellant and without an appeal by the State under Section 377 CrPC, and whether such enhancement complied with the principles of natural justice and the procedure laid down under the Code of Criminal Procedure.
Ratio Decidendi:
The High Courts enhancement of sentence in a criminal case, whether in appellate or revisional jurisdiction, requires the accused to be given reasonable notice and an opportunity to be heard. Enhancement without such procedure is a violation of natural justice and the Code of Criminal Procedure, rendering it invalid. The High Court cannot enhance a sentence in the absence of a state appeal under Section 377 or in revision under Section 401 without adhering to these procedural safeguards.
Result:
The appeal is allowed. The order enhancing the sentence to 7 years rigorous imprisonment is set aside. The trial courts sentence of 3 years rigorous imprisonment and a fine of Rs. 2500 with default clause is restored.
A.S.BHASME, SATISHVIG
JUDGMENT
S. RATNAVEL PANDIAN, J.- Special leave granted.
2. The notice was issued on the special leave petition limited to the question 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, or in the absence of an appeal by the State for enhancement of sentence on the ground of inadequacy.
3. This appellant along with two others were convicted for murdering Kumari Mangala in furtherance of their common intention and causing disappearance of evidence of the said offence with the intention of screening themselves from legal punishment under Section 302 read with Section 34 IPC and under Section 201 read with Section 34 IPC respectively and sentenced to suffer imprisonment for life under the first count and to suffer rigorous imprisonment for a period of 3 years and to pay a fine of Rs 2500 each with a default clause and directed both the substantive sentences to run concurrently.
4. They all preferred Criminal Appeal No. 284 of 1987 before the High Court of Bombay Bench at Aurangabad which set aside the conviction of all the convicted accused inclusive of this appellant under Section 302 read with Section 34 IPC and the conviction of other two under Section 201 read with Section 34 IPC but confirmed the conviction of this appellant under Section 201 IPC and enhanced the sentence to 7 years rigorous imprisonment.
5. The High Court neither issued notice to the appellant nor afforded him any opportunity of showing cause against the said enhancement while enhancing the sentence. Admittedly, there was no appeal by the State for enhancement of sentence under Section 377 CrPC on the ground of its inadequacy.
6. Let punishment fit the crime is one of the main objects of the sentencing policy. To achieve this object, the Code of Criminal Procedure empowers the High Court to enhance the sentence in appropriate cases where the sentence awarded by the subordinate courts is grossly inadequate or unconscionably lenient or flea-bite or is not commensurate with the gravity of the offence. 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 in its appellate jurisdiction under Section 377 read with Section 386(c) of the Criminal Procedure Code (hereinafter referred to as the Code) subject to the provisos (1) and (2) to Section 386 of the Code. It may be stated in this connection that it is permissible for the High Court while exercising its revisional jurisdiction under Section 397 read with Section 401 IPC to exercise the power of a court of appeal under Section 386(c) for enhancement of sentence.
7. This Court in Bachan Singh v. State of Punjab{(1979) 4 SCC 754} while dealing with the revisional powers of the High Court has ruled thus: (SCC pp. 756-57, paras 10 and 11)
"... in respect of the petition which was filed under Section 401 CrPC for the exercise of the High Courts power of revision, it was permissible for it to exercise the power of a court of appeal under Section 386 for enhancement of the sentence... The High Courts power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in Section 401 CrPC to which reference has been made above. That includes the power conferred on a court of appeal under Section 386 to enhance or reduce the sentence."
8. Under Section 377(1) of the Code, the State Government in any case of conviction on a trial held by any court other than the High Court is empowered to direct the public prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Under sub-section (2) of Section 377, the Central Government under the circumstances stated therein is empowered to direct the public prosecutor to present an appeal to the High Court for enhancement of sentence. Before the introduction of this Section 377 on the recommendation of the Law Commission in its 41st Report, any error in sentencing could be remedied only by the exercise of the revisional power of the High Court. However, the High Court notwithstanding the exercise of its powers under the appellate jurisdiction in an appeal preferred under Section 377 of the Code have powers to act suo motu to enhance the sentence in appropriate cases while exercising its revisional jurisdiction even in the absence of an appeal against the inadequacy of the sentence as provided under Section 377.
9. In Nadir Khan v. State (Delhi Administration){(1975) 2 SCC 406} wherein a question was raised that the High Court, in revision under Section 401 CrPC has no jurisdiction or power to enhance the sentence in the absence of an appeal against the inadequacy of sentence under Section 377, Goswami J. characterised that question as an unmerited doubt on the undoubted jurisdiction of the High Court in acting suo motu in criminal revision in appropriate cases and said "The attempt has to be nipped in the bud". Dealing with that question, he observed as follows: (SCC pp. 407-08, paras 4 and 5)
"It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by 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."
10. See also Lingala Vijay Kumar v. Public Prosecutor{(1978) 4 SCC 196}.
11. In Surjit Singh v. State of Punjab{1984 Supp SCC 518} the facts disclosed that the High Court while disposing an appeal preferred under Section 374 subsection (2) enhanced the sentence by imposing additional sentence of a fine of Rs 5000 with a default clause in addition to the sentence of life imprisonment inflicted by the trial court without issuing show-cause notice and without affording an opportunity to be heard. This Court while allowing the appeal held thus: (SCC p. 519, para 3)
"Rules of natural justice as also the prescribed procedure require that the sentence imposed on the accused cannot be enhanced without giving notice to the appellants and the opportunity to be heard on the proposed action.
12. In a recent judgment in Sahab Singh v. State of Haryana{(1990) 2 SCC 385} it has been observed: (SCC p. 388, para 5)
"If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code 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 the fine. The High Court clearly acted without jurisdiction."
13. Section 386 of the Code deals with the power of the appellate court in disposing of an appeal preferred under Section 374 and also in case of an appeal under Section 377 or Section 378 of the Code.
14. Under clause (b)(iii) of Section 386, the appellate court may 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. Under clause (c)(iii) of Section 386, 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.
15. From the above discussion, it is clear that the High Court both in exercise of its revisional jurisdiction under Section 397 read with Section 401 CrPC and its appellate jurisdiction under Section 377 read with Section 386(c) of CrPC in matters of enhancement of sentence should give the accused a reasonable opportunity of showing cause against such enhancement as contemplated under the first proviso to Section 386 as well under sub-section (3) of Section 377 of the Code. As pointed out in Surjit Singh case{1984 Supp SCC 518 : 1985 SCC (Cri) 90}, the rules of natural justice as also the prescribed procedure require issuing of notice to the appellant and affording an opportunity to be heard on the proposed action for enhancement of sentence.
16. In the backdrop of this legal position, we may revert to the case on hand. The High Court has enhanced the sentence unmindful of the relevant provisions of the Code of Criminal Procedure and also the rules of natural justice and by overstepping its jurisdiction adopted a leeway in enhancing the sentence from 3 years to 7 years for the conviction under Section 201 IPC which exercise of powers in violation of the prescribed procedure, is impermissible for the reasons stated albeit.
17. We, therefore, set aside the order of the High Court enhancing the sentence to 7 years and restore the order of the trial court inflicting the sentence of 3 years rigorous imprisonment and the fine of Rs 2500 with the default clause.
18. The appeal is allowed to the extent herein indicated.
For Citation : 1990 (4) SCC 718.