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PETITIONER: GOVIND RAMJI JADHAV

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT07/03/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 SCR  (1) 855        1990 SCC  (4) 718  JT 1990 (2)    23        1990 SCALE  (1)614

ACT:     Code of Criminal Procedure, 1973: Sections 377, 386  and 397Enhancement    of    sentence--Jurisdiction    of    High Court--Requirement of issue of notice and affording opportu- nity to accused.

HEADNOTE:     The appellant and two others were convicted for life and 3  years rigorous imprisonment or fine of Rs.2500  each  for offences  under  Section 302 read with Section  34  IPC  and Section  201  read  with Section 34  IPC,  respectively.  On appeal  by the accused the High Court set aside the  convic- tion  of all of them under Section 302 read with Section  34 IPC,  and also the conviction of two of them  under  Section 201  read with Section 34 IPC. In respect of  the  appellant the  High  Court  not only confirmed  the  conviction  under Section  201,  but  also enhanced the sentence  to  7  years rigorous  imprisonment. While doing so, the High  Court  did not  issue  notice to the appellant; nor did  it  afford  an opportunity  of showing cause against the proposed  enhance- ment  of sentence. Before the High Court, the State did  not prefer  an appeal for an enhancement of sentence under  Sec- tion 377 Cr.P.C. on the ground of inadequacy. Allowing the appeal, this Court,     HELD: 1.1. ’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 while the sentence awarded by the Subordinate Courts is grossly inade- quate  or  unconscionably lenient or ’flea-bite’ or  is  not commensurate with the gravity of the offence. The High Court enjoins the power of enhancing the sentence either in  exer- cise  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  Proce- dure Code subject to the provisos (1) and (2) to Section 386 of  the  Code. 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. [857G-H; 858A] 856

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   1.2.  The High Court, notwithstanding 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. [858F-G]     Bachan Singh etc. v. State of Punjab, [1980] 1 SCR  645; Nadir Khan v. The State (Delhi Administration), [1975] 2 SCC 406 and Lingala Vijay Kumar and Others v. The Public  Prose- cutor, [1978] 4 SCC 196, relied on.     2.  The  High Court both in exercise of  its  revisional jurisdiction under Section 397 read with Section 401 Cr.P.C. and  its appellate jurisdiction under Section 377 read  with Section  386(c)  of  Cr.P.C. 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. The rules of natural justice as  also the prescribed procedure require issuing notice  to the  appellant and affording an opportunity to be  heard  on the proposed action for enhancement of sentence. [861A-B]     Surjit  Singh  and Others, v. State  of  Punjab,  [1984] Supp. SCC 518 and Sahab Singh & Others v. State of  Haryana, JT 1990 1 SC 303, relied on.     3. In the instant case, 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  over-stepping its jurisdiction adopted a leeway  in  en- hancing the sentence from three years to seven years for the conviction under Section 201 IPC which exercise of powers in violation  of  the prescribed procedure,  is  impermissible. ]861C-D]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 197 of 1990.     From the Judgment and Order dated 15.9.1989/18.9.1989 of the Bombay High Court in Crl. A. No. 284 of 1987. Mr. Satish Vig for the Appellant. Mr. A.S. Bhasme for the Respondent. The Judgment of the Court was delivered by 857 S. RATNAVEL PANDIAN, J. Special leave granted.     The  notice  was issued on the  Special  Leave  Petition limited to the question whether the High Court had jurisdic- tion  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.     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 Sec. 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.2,500 each  with  a  default clause  and directed both the substantive sentences  to  run concurrently.     They  all  preferred  criminal appeal No.  284  of  1987

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before  the High Court of Bombay Bench at  Aurangabad  which set aside the conviction of all the convicted accused inclu- sive  of this appellant under Section 302 read with Sec.  34 IPC and the conviction of other two under Section 20 1  read with Sec. 34 IPC but confirmed the conviction of this appel- lant  under  Section 201 IPC and enhanced  the  sentence  to seven years rigorous imprisonment.     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. Admitted- ly,  there  was no appeal by the State  for  enhancement  of sentence  under  Section 377 Cr.P.C. on the  ground  of  its inadequacy.     ’Let  punishment fit the crime’ is one of the  main  ob- jects of the sentencing policy. To achieve this object,  the Code  of Criminal Procedure empowers the High Court  to  en- hance  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 Sec. 401 or in its appellate jurisdiction under Section 37 read  with Sec.  386(c)  of the Criminal  Procedure  Code  (hereinafter referred to as the ’Code’) subject to the 858 provisos  (1)  and (2) to Sec. 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 Sec. 401 IPC to  exercise  the power of a Court of Appeal under Section 386(c) for enhance- ment of sentence.     This  Court  in Bachan Singh etc. v.  State  of  Punjab, [1980] 1 SCR 645 while dealing with the revisional powers of the High Court has ruled thus: "in  respect of the petition which was filed  under  Section 401  Cr.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  ...........  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."     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 prose- cutor  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 circum- stances  stated  therein is empowered to direct  the  public prosecutor  to present an appeal to the High Court  for  en- hancement  of  sentence.  Before the  introduction  of  this Section  377 on the recommendation of the Law Commission  in its 4 1st 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 of the  exer- cise  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.

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   In  Nadir  Khan  v. The  State  (Delhi  Administration), [1975] 2SCC 406 wherein a question was raised that the  High Court, in revision under Section 40 1 Cr.P.C. has no  juris- diction or power to enhance the 859 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  juris- diction  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  ob- served as follows: "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  administra- tion of criminal justice, keeps a constant vigil and wherev- er 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  dis- closing 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  sec- tions.  It is true the new Code has expressly given a  right to  the  State under Section 377 Cr.P.C. to  appeal  against inadequacy  of  sentence which was not there under  the  old Code. That however does not exclude revisional  jurisdiction of  the High Court to act suo motu for enhancement  of  sen- tence 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)  Cr.P.C. are  clearly  supplemental  to those under Section 377 whereby appeals 860 are  provided  for  against inadequacy of  sentence  at  the instance  of the State Government or Central Government,  as the case may be."     See  also Lingala Vijay Kumar and Others v.  The  Public Prosecutor, [1978] 4 SCC 196.     In  Surjit Singh and Others v. State of  Punjab,  [1984] Supp. SCC 5 18 the facts disclosed that the High Court while disposing an appeal preferred under Section 374  sub-section (2) enhanced the sentence by imposing additional sentence of a fine of Rs. 5,000 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: "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."

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   In a recent judgment in Sahab Singh & Others v. State of Haryana, JT 1990 1 SC 303, it has been observed: "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 40 1 of the Code by issuing notice  of enhancement  and  heating 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."     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 378 of the Code.     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  Appel- late Court may in an appeal for enhancement of sentence with or  without  altering the finding, alter the nature  or  the extent or the 861 nature  and  extent,  of the sentence so as  to  enhance  or reduce the same.     From  the  above discussion, it is clear that  the  High Court both in exercise of its revisional jurisdiction  under Section  397 read with Sec. 40 1 Cr.P.C. and  its  appellate jurisdiction  under  Section 377 read with  Sec.  386(c)  of Cr.P.C.  in matters of enhancement of sentence  should  give the  accused  a  reasonable  opportunity  of  showing  cause against  such  enhancement as comtemplated 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’s case,  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.     In  the back-drop of this legal position, we may  revert to  the case on hand. The High Court has enhanced  the  sen- tence  unmindful of the relevant provisions of the  Code  of Criminal Procedure and also the rules of natural justice and by over-stepping its jurisdiction adopted a leeway 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  rea- sons stated albeit.     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  three  years rigorous  imprisonment  and the fine of  Rs.2,500  with  the default clause. The appeal is allowed to the extent herein indicated. G.N.                                       Appeal allowed. 862