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PETITIONER: SAHAB SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT20/02/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAY, B.C. (J)

CITATION:  1990 AIR 1188            1990 SCR  (1) 512  1990 SCC  (2) 385        JT 1990 (1)   303  1990 SCALE  (1)243

ACT:     Code of Criminal Procedure 1973: Sections 374, 377, 386, 397  and  401--Appeal  by convicts  against  conviction  and sentence  passed by trial court--High Court  dismissing  ap- peal, but enhancing sentence of ,fine without giving  notice and  opportunity of being heard to  convicts-Whether  within jurisdiction of High Court.

HEADNOTE:     The appellants were convicted by the Additional Sessions Judge  on  three counts and sentenced to  various  terms  of imprisonment  and  a  fine of  Rs.200  under  Sections  148, 323/149  and  302/149  I.P.C. The  appellants  preferred  an appeal  against the order of conviction and  sentence.  Dis- missing  the  appeal, the High Court, clarified  that  their convictions were on six counts and altered the fine  awarded under  Section  302/149 I.P.C. from Rs.200  to  Rs.5,000  in respect  of  each appellant per count,  i.e.  Rs.30,000  per appellant. Hence the appellants preferred appeal, by special leave, in this Court, limited to the question of enhancement of fine only.     Allowing the appeal, and setting aside the order of High Court enhancing the fine, this Court,     HELD:  It is clear from a conjoint reading  of  Sections 377,  386, 397 and 401 of Code of Criminal Procedure,  1973, that  if the State Government is aggrieved about the  inade- quacy of the sentence, it can prefer an appeal under Section 377(1)  of  the Code. The failure on the part of  the  State Government  to prefer an appeal does not, however,  preclude the  High Court from exercising suo motu power  of  revision under  Section 397 read with Section 401 of the Code,  since the High Court itself is empowered to call for the record of the  proceeding of any court subordinate to it.  But  before the  High Court can exercise its revisional jurisdiction  to enhance  the sentence, it is imperative that the convict  is put on notice and given an opportunity of being heard on the question  of sentence either in person or through his  advo- cate. The revisional jurisdiction cannot be exercised to the prejudice  of the convict without putting him on guard  that it is proposed to enhance the sentence imposed by the  Trial Court. [515A-D]

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513     In the present case, the appeal was filed under  Section 374(2) of the Code by the convicts against the order  passed by the Additional Sessions Judge. No appeal was filed by the State under Section 377(1) of the Code against the  sentence awarded  by  the trial court for the offence  under  Section 302/149, I.P.C. on the ground of its inadequacy. Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code. 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. [515D-F]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 104 of 1990.     From  the  Judgment  and Order dated 1.9.  1983  of  the Punjab and Haryana High Court in Crl. A. No. 199-DB/83. B.S. Malik for the Appellants. Mahabir Singh for the Respondent. The Judgment of the Court was delivered by AHMADI, J. Special leave granted.     The  seven  appellants before us were convicted  by  the learned  Additional Sessions Judge, Sonepat on three  counts and sentenced as under: (a)  rigorous imprisonment for one year under  Section  148, I.P.C.; (b) rigorous imprisonment for six months under Section  323/ 149, I.P.C.; and (c) imprisonment for life and a fine of Rs.200 under Section 302/149, I.P.C. All  the  said substantive sentences were  directed  to  run concurrently. 514     The  seven  appellants preferred an appeal  against  the order of conviction and sentence passed by the learned Trial Judge.  The High Court while dismissing their appeal  clari- fied  that their convictions were on six counts and  altered the  fine awarded under Section 302/149, I.P.C. from  Rs.200 to  Rs.5,000  in respect of each appellant per  count,  i.e. Rs.30,000 per appellant. Being aggrieved by this enhancement of fine the appellants have preferred this appeal limited to the question of this enhancement only.     Section  374  of the Code of  Criminal  Procedure  (’the Code’ hereinafter) provides for appeals from conviction by a Sessions  Judge or an Additional Sessions Judge to the  High Court.  Section 377 entitles the State Government to  direct the Public Prosecutor to present an appeal to the High Court against  the sentence on the ground of its inadequacy.  Sub- section  3 of Section 377 says that when an appeal has  been filed against the sentence on the ground of its  inadequacy, the  High Court shall not enhance the sentence except  after giving  to the accused a reasonable opportunity  of  showing cause  against such enhancement and while showing cause  the accused may plead for his acquittal or for the reduction  of the  sentence.  Admittedly no appeal was  preferred  by  the State  Government against the sentence imposed by  the  High Court  on  the conviction of the  appellants  under  Section

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302/149,  I.P.C. Section 378 provides for an appeal  against an order of acquittal. Section 386 enumerates the powers  of the  appellate  court.  The first proviso  to  that  section states  that the sentence shall not be enhanced  unless  the accused has had an opportunity of showing cause against such enhancement.  Section 397 confers revisional powers  on  the High  Court as well as the Sessions Court. It,  inter  alia, provides  that the High Court may call for and  examine  the record of any proceeding before any inferior criminal  court situate within its jurisdiction for the purposes of satisfy- ing  itself as to the correctness, legality or propriety  of any finding, sentence or order recorded or passed and as  to the  regularity  of any proceedings of any  inferior  court. Section  40 1 further provides that in the case of any  pro- ceedings, the record of which has been called for by  itself or  which otherwise comes to its knowledge, the  High  Court may, in its discretion, exercise any of the powers conferred on  a Court of appeal by Sections 386, 389, 390 and  391  of the  Code.  Sub-section 2 of Section 401  provides  that  no order  under this Section shall be made to the prejudice  of the accused or other person unless he has had an opportunity of  being heard either personally or by Pleader in  his  own defence.  Sub-section 4 next provides that where under  this Code an appeal lies and no appeal is brought, no  proceeding by way of revision shall be entertained at the 515 instance  of the party who could have appealed. It is  clear from  a  conjoint reading of Section 377, 386, 397  and  401 that  if the State Government is aggrieved about the  inade- quacy of the sentence it can prefer an appeal under  Section 377(1)  of  the Code. The failure on the part of  the  State Government  to prefer an appeal does not, however,  preclude the  High Court from exercising suo motu power  of  revision under  Section 397 read with Section 40 1 of the Code  since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub-section 4 of  Section 401 operates as a bar to the party which  has  a right  to prefer an appeal but has failed to do so but  that sub-section cannot stand in the way of the High Court  exer- cising revisional jurisdiction suo motu. But before the High Court  exercises  its suo motu  revisional  jurisdiction  to enhance  the sentence, it is imperative that the convict  is put on notice and is given an opportunity of being heard  on the  question  of sentence either in person or  through  his advocate. The revisional jurisdiction cannot be exercised to the  prejudice of the convict without putting him  on  guard that  it is proposed to enhance the sentence imposed by  the Trial Court.     Now,  in  the present case the appeal  was  filed  under Section 374(2) of the Code by the convicts against the order passed by the Additional Sessions Judge. No appeal was filed by  the State under Section 377( 1) of the Code against  the sentence  awarded by the trial court for the  offence  under Section 302/149 I.P.C. on the ground of its inadequacy.  Nor did the High Court exercise suo motu revisional powers under Section  397 read with Section 401 of the Code. 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 heating  the convicts on the question of inadequacy of  sen- tence.  Without following such procedure it was not open  to the  High Court in the appeal filed by the convicts  to  en- hance  the  sentence by enhancing the fine. The  High  Court clearly acted without jurisdiction. For the above reasons we are clearly of the opinion that the appeal must succeed.

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   In  the  result we allow this appeal and set  aside  the order of the High court insofar as it enhances the  sentence by enhancing the fine from Rs.200 to Rs.5,000 per count  per appellant.  In other words we restore the order of  sentence passed by the Trial Court under Section 302/149, I.P.C.  The additional fine, if paid, will be refunded. N.P.V.                                          Appeal   al- lowed. 516