The Supreme Court has observed that, though the High Court has power to 'suo motu' enhance the sentence while considering an appeal/revision filed by the convict, it should be exercised sparingly and in exceptional circumstances.
Such power should not be exercised without issuing notice to the accused, said the bench comprising of the Chief Justice of India Ranjan Gogoi, Justice Deepak Gupta and Justice Aniruddha Bose. The Court further observed that such notice cannot be cannot be an illusory notice and it should indicate why the Court wants to enhance the sentence and it must give reasonable time to the accused to answer the notice.
In this case (Prakash Jain vs. State of Karnataka), the accused were convicted under Section 379 IPC and Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957. The trial court only imposed a sentence of fine. The Sessions' Court dismissed their appeal. However, the High Court, while considering the revision petition filed by them not only affirmed and upheld the conviction, but also enhanced the sentence to one of rigorous imprisonment of three months for the offence under Section 379 IPC and rigorous imprisonment of six months for the offence under the Mines and Minerals (Development and Regulation) Act, 1957.
In the Special Leave Petition filed by the accused, the three judge bench observed:
It is a well settled principle of law that though the High Court has the power to enhance the sentence sou motu, such power should be exercised sparingly and in exceptional circumstances and furthermore this power should not be exercised without issuing notice to the accused. This notice cannot be an illusory notice. As far as the present case is concerned, it appears that during the course of hearing notice was given. However, it is not clear whether such a notice was an oral notice or a notice in writing. In our view, such a notice would not satisfy the legal requirements. Any notice for enhancement must indicate why the Court wants to enhance the sentence and it must give reasonable time to the accused to answer the notice. This did not happen in the present case.
Setting aside the part of the High Court order which enhanced the sentence, the bench said that the High Court exceeded its jurisdiction under the law to order imposition of sentence.
Suo Motu Enhancement of Sentence
In Nadir Khan vs. State, the contention before the Apex Court was that the High Court, in revision under s. 401 Cr. P.C., has no jurisdiction or power to enhance the sentence in the absence of an appeal against the inadequacy of sentence under s. 377. Rejecting the said contention, the bench headed by Justice P Goswami said:
"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 administration of criminal-justice, keeps a, constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded 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. is now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing 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 sections. It is true the new Code has expressly given a right to the State under s.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 sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Art. 136 of the Constitution…S. 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 s. 401 read with s. 386(c) (iii) Cr. P.C. are clearly supplemental to those under s. 377 whereby appeals are provided for against inadequacy of sentence at the instance of the State Government or Central Government, as the case may be."
Justice Goswami himself, in another case [Eknath Shankarrao Mukkawar vs State Of Maharashtra], reiterated this
"We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or 'the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extent under section 397 read with section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can"by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction.
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