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PETITIONER: BACHAN SINGH ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT14/09/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. KRISHNAIYER, V.R.

CITATION:  1980 AIR  267            1980 SCR  (1) 645  1980 SCC  (1) 754

ACT:      Criminal Procedure Code, 1973 (Act 1 of 1974), Sections 377, 401,  Scope  of-Hearing  of  an  appeal  against  their conviction and  sentence filed by the accused along with the State appeal  against their  conviction  under  section  302 I.P.C. and  a Revision Petition for enhancement of sentence- Their appeal  itself, furnishes  further opportunity  to the accused  to  plead  for  their  acquittal  or  reduction  of sentence  or  to  show  cause  against  the  enhancement  of sentence.

HEADNOTE:      Against their  conviction and  sentence passed  by  the Sessions  Judge,  Gurdaspur,  the  appellants  preferred  an appeal to  the High  Court. The  State filed  an appeal  for their conviction  and sentence  under section  302 I.P.C.  A revision petition was also filed under Section 401 Crl. P.C. for enhancement of the sentence of imprisonment and fine "to meet the  ends of  justice". Though  the High  Court made an express order on December 9, 1974 that the revision petition would be  heard along  with the  criminal appeal,  the  High Court by  its  impugned  judgment  dated  January  3,  1978, dismissed the  appeal filed by the accused, but enhanced the sentence of  Bachan Singh,  Gurnam Singh  and  Chanan  Singh accused under  Section 304  Part I  read  with  Section  149 I.P.C. to  rigorous imprisonment  for life  and  of  accused Ravail Singh  and  Vir  Singh  under  the  same  section  to rigorous imprisonment for 10 years. While making that order, the  High   Court  observed   that  the  State  appeal  "for enhancement of  punishment"  was  partly  accepted,  without reference to  the revision  petition. Hence the petition for special leave  under Article  136 of the Constitution on the ground that  the High  Court committed  an error  of law  in enhancing the  sentence of the accused without giving them a reasonable  opportunity   of  showing   cause  against  such enhancement and  without allowing  them to  plead for  their acquittal or  for reduction  of the sentence as contemplated by sub-section  (3) of  section 377  of the Code of Criminal Procedure.      Dismissing the petition the Court, ^      HELD:

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    1. The  revision petition  under section  401 Crl. P.C. for enhancement  of the  sentence was maintainable as it was not permissible  for the  revision  petitioner  to  file  an appeal  under   section  377.  The  High  Court  effectively disposed of  both the appeals and the revision petition even though there  was an  inadvertent mistake  in not  making  a reference to  the revision petition in the judgment. [647 F- G, 648 B]      2. The opportunity for pleading for acquittal was amply furnished to  the accused at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary  opportunity for  pleading for their acquittal or the  reduction of  the sentence.  That, in  fact, was the subject matter  of their  appeal. The  fact that  the appeal filed by the State 5-625SCI/79 646 against the  acquittal of  the  accused  under  section  302 I.P.C. was  heard along with their appeal against conviction and sentence,  itself furnished an opportunity to show cause against the enhancement of the sentence. [648 C-D]      3. (a)  In the  petition filed  under section  401 Crl. P.C. for the exercise of the High Court’s 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. [648 E-F]      (b) It  was also  permissible for  the High Court under Section 397 Crl. P.C., to call for and examine the record of the proceedings  before  the  trial  court  for  purpose  of satisfying  itself   as  to  the  correctness,  legality  or "propriety" of  any finding, "sentence" or order recorded or passed by  that inferior  Court. The  High Court’s  power of revision under  section 401  Crl.P.C. in  the  case  of  any proceeding the  record of which has been called for by it or which otherwise  comes to  its knowledge  includes the power conferred on  a court of appeal under section 386 to enhance or reduce  the sentence.  So when the record of the case was before the High Court in connection with the two appeals and the revision  petition there was nothing to prevent the High Court from  invoking its  power under  section 397 read with 401 Crl.  P.C. and  to make  an order for the enhancement of the sentence. [648 F-H]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Crl.) No. 1383 of 1978.      From the  Judgment and  Order  dated  3-1-1978  of  the Punjab and Haryana High Court in Crl. A. No. 1039/74.           K. L.  Jogga and  L. N.  Gupta for the Petitioner.      Hardev Singh for the Respondent. The Order of the Court      was delivered by      SHINGHAL, J.-We  have heard  learned  counsel  for  the parties at length.      Accused Bachan  Singh, Gurnam  Singh and  Chanan  Singh were convicted  by the  Sessions Judge  of Gurdaspur  of  an offence under  section 304  Part I  read  with  section  149 I.P.C. and  were sentenced  to rigorous  imprisonment for 10 years and  a fine of Rs. 1000/-. They were also convicted of an  offence  under  section  148  I.P.C.  and  sentenced  to rigorous imprisonment for 2 years. The remaining two accused Ravail Singh  and Vir  Singh were  convicted of  an  offence under section  304 Part  I read with section 149 I.P.C., but they were sentenced to rigorous imprisonment for 5 years and a fine  of Rs.  500/-. Further,  they were  convicted of  an

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offence under  section 147  I.P.C.  and  were  sentenced  to rigorous imprisonment for 1 year.      An appeal  was  filed  by  the  accused  against  their conviction and  sentence; and  the State filed an appeal for their conviction  and sentence  under section  302 I.P.C.  A revision petition was filed under 647 section 401  Crl. P.C.  for enhancement  of the  sentence of imprisonment and  fine "to  meet the  ends of  justice". The High Court  of Punjab  and Haryana  made an express order on December 9,  1974 that  the revision petition would be heard alongwith the  criminal appeal  (No. 1039  of 1974) filed by the accused.      By its  impugned Judgment  dated January  3, 1978,  the High Court  dismissed the  appeal which  was  filed  by  the accused, but  enhanced the  sentence of Bachan Singh, Gurnam Singh and Chanan Singh accused under section 304 Part I read with section  149 I.P.C.  to rigorous  imprisonment for life and of  accused Ravail  Singh and  Vir Singh  under the same section to  rigorous imprisonment for 10 years. While making that order,  the High  Court observed  that the State appeal "for enhancement  of punishment" was "partly accepted". That is why  all the  five accused have applied to this Court for special leave under article 136 of the Constitution.      It has  been argued  by learned counsel for the accused that the  High Court  committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of  showing cause  against such  enhancement and without allowing  them to  plead for  their acquittal or for reduction of the sentence as contemplated by sub-section (3) of section 377 of the Code of Criminal Procedure.      It appears to us, however, that as the State Government did not  file an  appeal against  the  sentence  under  sub- section (1) of section 377 Cr.P.C, and as it is not disputed before us that its appeal was directed against the acquittal of the  accused for  the offence  under section  302 I.P.C., there is  no justification  for the  argument that  the High Court committed  an illegality  in not  complying  with  the requirement of  sub-section (3)  of that  section for giving the opportunity  to the accused of showing cause against the enhancement  of  the  sentence  or  of  pleading  for  their acquittal or for reduction of the sentence.      As has  been stated, a petition was filed under section 401 Cr.P.C.  for enhancement  of the  sentence, and  it  was clearly maintainable  as it  was  not  permissible  for  the revision petitioner  to file an appeal under section 377. It will be  recalled that  the High Court made an express order on December  9,  1974,  for  the  hearing  of  the  revision petition alongwith  the appeal  which had  been filed by the accused.      The fact  therefore remains  that the  High  Court  had before it  the above  mentioned appeals which had been filed by the  accused and  the State,  and the  revision  petition under section  401 Cr.P.C.  for enhancement of the sentence. While that court dismissed the appeal of the 648 accused, and  allowed the  appeal of  the State  in part, it forgot to  make a  reference to  the revision petition while drawing up  the operative  part of  its order.  That was  an inadvertent mistake for, after reading the impugned judgment of the  High Court,  we have  no doubt  that it  effectively disposed of  both the appeals and the revision petition even though the wordings of the judgment in that respect were not quite appropriate.      But, even otherwise, there is no merit in the grievance

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of the  accused that  they were not given the opportunity of showing cause  against the enhancement of the sentence or to plead for  their acquittal or for reduction of the sentence. The  opportunity   for  pleading  for  acquittal  was  amply furnished at  the hearing  of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for  pleading for the reduction of the sentence. That in fact was the subject matter of their appeal.      It is  not disputed before us that the High Court heard the State  appeal against  the  acquittal  of  the  accused, alongwith the  appeal which  was filed  by the  accused, and that furnished  further opportunity  to the accused to plead for their  acquittal, or  reduction of  sentence, or to show cause against the enhancement of the sentence. There is thus no force  in the  argument to  the contrary.  It has  to  be appreciated that  in respect of the petition which was filed under section  401 Cr.P.C.  for the  exercise  of  the  High Court’s powers  of revision,  it was  permissible for  it to exercise the  power of  a Court  of Appeal under section 386 for enhancement  of the sentence, and if that had been done, there  is   no  justification  for  the  argument  that  the enhancement was illegal.      There  is   another  reason   for  this  view.  It  was permissible for  the High Court under section 397 Cr.P.C. to call for and examine the record of the proceeding before the trial court  for the  purpose of satisfying itself as to the correctness,  legality   or  "propriety"   of  any  finding, "sentence" or  order, recorded  or passed  by that  inferior court. The High Court’s power of revision in the case of any proceeding the  record of which has been called for by it or which otherwise  comes to  its knowledge, has been stated in section 401  Cr.P.C. to which reference has been made above. That includes the power conferred on a Court of Appeal under section 386  to enhance  or reduce the sentence. So when the record of  the case  was before the High Court in connection with the  two appeals  and the revision petition referred to above, there  was nothing  to prevent  the High  Court  from invoking its  powers under section 397 read with section 401 Cr.P.C. and  to make  an order  for the  enhancement of  the sentence. 649      There is thus no force in the argument to the contrary.      All the  same, we  gave an  opportunity to  the learned counsel for the accused to advance his arguments on question of sentence  and all  that he  was able to argue was that as the accused  had undergone a portion of the sentence and, as the offence  was committed  in 1972,  the High Court was not justified in  enhancing the  sentence. As  is obvious,  both these arguments are untenable and inconsequential because of the concurrent  findings of  the trial  court and  the  High Court that  the accused  emerged from  the house  of accused Bachan Singh  as soon  as Sarup Singh (deceased) reached the place of  occurrence, shouted  that he  should be  taught  a lesson for  getting liquor  recovered from them and beat him with their  respective weapons.  It has  been found  further that while  accused Vir Singh caught hold of the hair of the deceased and Ravail Singh caught hold of his legs and felled him on the ground, Gurnam Singh, who was armed with a datar, dealt belows  on his  right knee  while Chanan  Singh gave a kirpan blow  on his left hand, and then accused Gurnam Singh gave a  blow on  his right  knee while  Chanan Singh  gave a kirpan blow on his left hand and he, Gurnam Singh and Bachan Singh dealt  further blows on his left leg near the knee, as a result  of which  the left leg was completely severed from the body.  It has  also been  concurrently  found  that  the

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accused took  away the chopped off leg of the deceased after wrapping it  in his  turban, and  that he  succumbed to  the injuries soon  after. The  facts and the circumstances which have thus  been established  by the  evidence of  Pal  Singh P.W.4, and  Nishan Singh  P.W.5, on  which reliance has been placed by  both the  courts, justify  the view  taken by the High Court that the accused deserved the sentence awarded to them by it.      Learned counsel for the accused tried to argue that the conviction of  the accused  was not justified on the merits, and took  us through the finding in regard to the motive for the offence, the nature of the medical evidence, the plea of self  defence   taken  by   accused  Bachan  Singh  and  the relationship of  eye-witnesses Pal  Singh P.W.4  and  Nishan Singh P.W.5  with the  deceased. Apart  from the  fact  that there was no occasion for us to consider those arguments, we have no hesitation in saying that they are without merit.      In the  view we  have taken,  the petition  for special leave is dismissed. V.D.K.                                   Petition dismissed. 650