Madhya Pradesh High Court
The State Of M.P. vs Shishupal Singh & Ors. on 6 September, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
Cr.A. No.316/2003
HIGH COURT OF MADHYA PRADESH
Cr.A. No.316/2003
(The State of M.P. Vs. Shishupal Singh & Ors.)
Gwalior, dated: 06.09.2019
Per Justice Vivek Agarwal
This case is listed on the PUD received from the Court of
District and Sessions Judge, Bhind enclosing therewith a letter
from the Court of First Additional Sessions Judge (Special Judge,
Prevention of Corruption Act), Bhind pointing out that accused
Dhara Singh S/o Shishupal Singh, who has been convicted under
Section 302 of IPC while deciding Cr.A. No.316/2003 vide
judgment dated 05.08.2019 passed by this court, appeared before
the said Court on 19.08.2019 and was sent to judicial custody as
per the orders of the Court but due to oversight, there is omission
in the impugned judgment that though respondent Dhara Singh has
been convicted under Section 302 of IPC but the sentence, which he has required to undergo, has not been mentioned.
Section 465 (1) of the Code of Criminal Procedure,1973 reads as under:
"465. Finding of sentence when reversible by reason of error, omission or irregularity.-
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, 2 Cr.A. No.316/2003 warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby."
Section 386 of Cr.P.C. reads as under :-
"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 or 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, alter 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 3 Cr.A. No.316/2003
(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."
In the case of Jayaram Vithoba and another Vs. State of Bombay as reported in AIR 1956 SC 146, Hon'ble Supreme Court has referred to equivalent Section of Code of Criminal Procedure, 1898 i.e. Section 423 (1)(d) and has held as under :-
"The power to pass a sentence under those circumstances is derived from the law which enacts that on conviction a sentence shall be imposed on the accused, and that is a power which can and ought to be exercised by all the courts which, having jurisdiction to decide whether the accused is guilty or not, find that he is. We are of opinion that this power is preserved to the appellate court expressly by section 423 (1)(d), which enacts that it can "make any amendment or any consequential or incidental order that may be just or proper".
When a conviction is affirmed in appeal but no sentence had been awarded by the trial Magistrate, the award of a sentence is consequential on and incidental to the affirmance of the conviction, and it is a just and proper order to be passed under the law. We are unable to agree with the view expressed in AIR 1940 Bom 129 4 Cr.A. No.316/2003 (A) that such an order would be an enhancement of the sentence.
Before a sentence can be said to be enhanced, there must be one which could be enhanced, and when no sentence was imposed on a conviction by the trial Magistrate and one is for the first time awarded in appeal, it cannot correctly be said to be an enhancement. We are accordingly of opinion that it was within the competence of the High Court to have passed the sentence which it had."
It is apparent that this Court has recorded a finding of conviction against respondent Dhara Singh under Section 302 of IPC but omitted to mention the sentence, which said Dhara Singh shall undergo on being convicted under Section 302 of IPC.
In our opinion and in terms of the provisions contained in Section 465 read with Section 386 (e) of Cr.P.C., this is a curable irregularity and will not cause any prejudice to said Dhara Singh if we sentence him to imprisonment for life and to a fine of Rs.1000/-, in default of fine, further one months' R.I. Accordingly, impugned judgment is modified and it is directed that on being convicted under Section 302 of IPC, respondent Dhara Singh shall undergo life imprisonment and shall pay a fine of Rs.1000/-, in default of which further one months' R.I. Such modification be read into the impugned judgment.
PUD stands disposed of in above terms.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
SP
SANJEEV KUMAR
PHANSE
2019.09.09
18:09:11 +05'30'