Section 377(3) of the Code of Criminal Procedure reads as follows: –
“377. Appeal by the State Government against sentence. –
(1) ………….
(2) ………….
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, 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.”
Section 386 of the Code, being relevant, is reproduced below: –
“386. Powers of the Appellate Court. –
After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may –
(a)in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b)in an appeal from a conviction –
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, after the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) 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-tried 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;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed than might have been inflicted for that offence by the Court passing the order or sentence under appeal.”
Case Laws
Section 377(3), and its effect, and application in appeal preferred after grant of special leave were considered in State of U.P. v. Dharmendra Singh and another (1999), wherein the two- Judge Bench has ruled that a perusal of said provision shows that it is applicable only when the matter is before the High Court and the same is not applicable to Supreme Court when an appeal for enhancement of sentence is made under Article 136 of the Constitution.
It is to be noted that an appeal to Supreme Court in criminal matters is not provided under the Code except in cases covered by Section 379 of the Code. It has been further observed that an appeal to Supreme Court under Article 136 of the Constitution is not the same as a statutory appeal under the Code, for Supreme Court under Article 136 of the Constitution is not a regular court of appeal to which an accused can approach as of right. It is an extraordinary jurisdiction which is exercisable only in exceptional cases when Supreme Court is satisfied that it should interfere to prevent a grave or serious miscarriage of justice, as distinguished from mere error in appreciation of evidence. Proceeding further the court held:
“While exercising this jurisdiction, Supreme Court is not bound by the rules of procedure as applicable to the courts below. Supreme Court’s jurisdiction under Article 136 of the Constitution is limited only by its own discretion (see Nihal Singh v. State of Punjab (1965)). In that view of the matter, we are of the opinion that Section 377(3) of the Code in terms does not apply to an appeal under Article 136 of the Constitution. Thereafter, the Court relied upon the authority in Chandrakant Patil v. State through CBI (1955) and distinguished the decision in U.J.S. Chopra v. State of Bombay (1955) and came to hold as follows: –
“This does not mean that Supreme Court will be unmindful of the principles analogous to those found in the Code including those under Section 377(3) of the Code while moulding a procedure for the disposal of an appeal under Article 136 of the Constitution. Apart from the Supreme Court Rules applicable for the disposal of the criminal appeals in Supreme Court, the Court also adopts such analogous principles found in the Code so as to make the procedure a “fair procedure” depending on the facts and circumstances of the case.”
Eventually, the Court convicted the respondent to argue for an acquittal in the appeal preferred by the State of U.P. for enhancement of the sentence by adopting the analogous provision found in Section 377(3) of the Code.
Relying on the said decision in State of Rajasthan v. Kishan Lal (2002), the Court thought that it was an appropriate case where it should permit the learned amicus curiae to argue for acquittal of the respondent and, eventually, reversed the judgment of conviction and acquitted the respondent of all the charges levelled against him.
At this juncture, it is useful to refer to the decision by the Constitution Bench in P.S.R. Sadhanantham v. Arunachalam and another (1980) In the said case, the petitioner, an accused, was convicted in appeal by way of special leave preferred by the brother of the deceased who was not even the first informant. The convict- petitioner preferred a writ petition under Article 32 of the Constitution to upset the conviction on the ground that the proceedings were unconstitutional being violative of Article 21.
The Constitution Bench, adverting to the same, opined that though Article 136 does not confer a right of appeal on a party as such in express terms, yet it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the Court. The larger Bench proceeded to state thus:
In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. Supreme Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136.”
The Court further analyzing the point, observed that:-
“We have hardly any doubt that here is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Article 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence.”
Thereafter, the larger Bench proceeded to observe as follows: –
“9. We may eye the issue slightly differently. If Article 21 is telescoped into Article 136, the conclusion follows that fair procedure is imprinted on the special leave that the court may grant or refuse. When a motion is made for leave to appeal against an acquittal, Supreme Court appreciates the gravity of the peril to personal liberty involved in that proceeding.
It is fair to assume that while considering the petition under Article 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave. When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Article 136, it is reasonable to conclude that the desideratum of fair procedure implied in Article 21 is adequately answered.
10. Once we hold that Article 136 is a composite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power, nothing more remains in the objection of the petitioner. It is open to the court to grant special leave and the subsequent process of hearing are (sic is) well- established. Thus, there is an integral provision of power- cum- procedure which answers with the desideratum of Article 21 justifying deprivation of life and liberty.”
The said principle has been reiterated in Esher Singh v. State of A.P. by stating that Supreme Court can entertain appeals against acquittal by the High Court at the instance of interested private parties, for the circumstances that the Code does not provide for an appeal to the High Court against an order of acquittal by a subordinate court, at the instance of the private party, has no relevance to the question of the power of Supreme Court under Article 136.
From the aforesaid enunciation of law two principles are absolutely clear; first, an injured who is an aggrieved party can prefer an appeal by special leave and Supreme Court’s power under Article 136 being of wide amplitude, it can remove injustice when it witnesses it and second, in an appeal preferred by State for enhancement of sentence the accused can plead that he is entitled to an acquittal as there is no material on record to sustain the conviction.
Reference
Sumer Singh v Surajbhan Singh (2014)