Karnataka High Court Diary
Section 377 of the CrPC has been enacted giving a special remedy by way of appeal for enhancement of sentence, and such a remedy by way of appeal is available only to the State and not to the complainants.
Section 377 reads as follows:
“Save as otherwise provided in sub-section (2), the State Govt. may in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the high Court against the sentence on the ground of its inadequacy.
If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Govt. may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
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.”
Court’s Analysis of the Provision
The Karnataka High court had the occasion to analyse the provision when a case came before the court against the inadequacy of sentence to accused. This was a case of food adulteration.
In the case ‘Food Inspector, Mangalore v. K.S. Raphael (1980)’, the accused was only at employee for supply of the milk and there was no evidence in the case to show that the accused had any knowledge that the milk that was in the can with him was adulterated and the fact that the employer had been acquitted, Session Judge thought the case of the accused deserved to be dealt with leniently and accordingly relying upon the decision in Ramanjaneyulu v. K. M. Malloji Rao reported in 1978 Cri LJ 1047 (Kant) he set aside the order of imprisonment passed on the accused.
The High Court analysed the Case as follows-
- From a reading of the Section, it is clear that under sub-section (1), the State is empowered to direct the Public Prosecutor to present an appeal to the High Court on the ground of inadequacy of sentence under sub-section (3), when an appeal has been filed against the sentence on the ground of its inadequacy, a reasonable opportunity has also to be given to the accused for showing cause against the enhancement and while showing cause, it is also open to the accused to plead for his acquittal or for reduction of the sentence.
- Because of these provisions made in Section 377 giving a right of appeal to the State, for enhancement of the sentence, it appears, the Legislature thought it superfluous, to make a provision for enhancement of sentence in Section 401, analogous to Clause (6) of Section 439 of the old Cr.P.C. In other words, in any case of conviction on trial held by any Court other than High Court (whether the case is instituted on a Police Report or otherwise) it is the State alone which has the right of appeal against the sentence on the ground of inadequacy.
- But the question however is whether a revision for enhancement of sentence was not at all competent.
While Section 397 Cr.P.C. which confer revisional power says : “The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself 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 such inferior Court and may, when calling for such record, direct that the Execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record”;
Sub-section (1) of Section 401 Cr.P.C. says : “In the case of any proceeding 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 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392”.
- Thus even though a special right of appeal for enhancement of sentence has been given to the State under Section 377 Cr.P.C. the High Court’s power is examined. The correctness of the sentence in exercise of the revisional powers have not been taken away and that is clear in view of the provisions made in sub-section (1) of Section 401 Cr.P.C. which clearly says that in the case of any proceeding, the record of which has been called for by the High Court 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.
- As such, all the powers that can be exercised by the High Court on appeal for enhancement, can be exercised in a revision. Clause (c) of Section 386 Cr.P.C. says: in an appeal for enhancement of sentence –
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tied by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) 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.
- Therefore, the fact that a remedy by way of appeal is given to the State is no reason to hold that the complainant or person interested is also precluded from coming in revision to the High Court.
- Since the revisional powers can be exercised by the High Court through howsoever the matter may be brought to the notice of the High Court, a revision by the complainant in a case instituted on a complaint is competent, for no such remedy by way of appeal has been given to the complainant.
- Therefore, since the case, out of which the revision has been brought, was instituted on the complaint of the petitioner it was competent for him to invoke the revisional jurisdiction and the High Court has also power to enhance the sentence where the sentence passed by the Court trying the case is inadequate, either because the sentence is too lenient or the sentence passed is illegal not being in accordance with law.
Reasonable Opportunity of being heard
- Where the State comes in appeal for enhancement as provided under Section 377, as provided under sub-section (3) of Section 377, a reasonable opportunity has not only to be given to the accused for showing the cause against the enhancement, but while showing cause the accused is also entitled to plead for his acquittal.
- The High Court exercising the revisional powers has all the powers of an Appellate Court. Since, the High Court, in an appeal, for enhancement of sentence has got the powers to reverse the finding and sentence as also to acquit or discharge the accused, in view of the provisions contained in sub-clause (i) of Clause (c) of Section 386 Cr.P.C., it is competent for the High Court to go into the question of legality of the conviction itself.
- That is in sum and substance, the effect of reading the provisions of Sections 377, 386 and 401. Secondly, because when the complainant or private person aggrieved comes in revision against the sentence on the ground of inadequacy or illegality, the revision by a complainant cannot stand on higher footing than the appeal.
- In a case where the State does not file an appeal against the sentence and the complainant comes in revision, to deny such an opportunity to the accused is to place the revision for enhancement by the complainant or a private person on higher footing than the appeal by the State. That could never have been the intention of the Legislature.
- Therefore, while, it is competent for the High Court in exercise of the revisional powers, to go into the question of legality and correctness of the findings on which the conviction itself is based, the accused is also entitled to plead for his acquittal.
- That is because, as observed by his Lordship Das, J., in U. J. S. Chopra v. State of Bombay ; that is a valuable right on the subject which is designed to be a safeguard against the State or other interested persons making frivolous revision application for enhancement of sentence. The State or the person interested must, if they ask for an enhancement of sentence, be prepared to face the risk of the accused being altogether acquitted. It is the price or quid pro quo which the State or other interested person must be prepared to pay for the right or privilege of making an application for enhancement of sentence.
Hence before enhancing the sentence, it becomes necessary to see whether the order of conviction itself is legal and proper.
Food Inspector, Mangalore v. K.S. Raphael (1980)