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CASE NO.: Appeal (crl.)  1682 of 1996

PETITIONER: K.Pandurangan                                            

RESPONDENT: S.S.R.Velusamy & Anr.            

DATE OF JUDGMENT: 18/09/2003

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

(With Crl.A.Nos.1684/96, 1683/96 and 1685/96)

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.  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 ½ years each and  further acting purportedly under various GOs. of the  Government, it granted remission of the said sentence of 2 ½  years also.  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. 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.  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

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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. 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 moto 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).  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. 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) has held that deprivation of one statutory

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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.