Kerala High Court
T. Jayarajan vs P.R. Muhammed And Ors. on 3 February, 1999
Equivalent citations: 1999CRILJ1856
ORDER K.A. Mohamed Shafi, J.
1. This Crl. M. C. is filed by the complainant in C.C. No. 436/95 on the file of the Addl. Chief Judicial Magistrate's Court, Thalassery to set aside the order dt. 6-6-98 passed by the Sessions Court, Thalassery in Crl. R. P. No. 50/98. No. 50/98.
2. The petitioner filed a private complaint against the 1st respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. The trial Court after trial found the 1st respondent guilty of the offence, punishable under Section 138 of the N. I. Act, convicted and sentenced him to undergo rigorous imprisionment for 4 months. The complainant filed Crl. R.P. No. 50/98 before the Sessions Court, Thalassery for enhancement of the sentence awarded by the trial Court. The learned Sessions Judge by order dated 6-6-1998 dismissed the revision petition by finding that a revision petition by the complainant for enhancement of the sentence is not maintainable before the Sessions Court. This Crl. M.C. is filed to quash the order passed by the Sessions Court.
3. The contention of the 1st. respondent, accused before the trial Court was that under Section 377 of the Cr. P.C. remedy is provided to prefer appeal to the High Court against the sentence on the ground of its inadequacy. The Crl. R. P. filed by the petitioner before the Sessions Court and the Crl. M. C. filed by him before this Court under Section 482 of the Cr. P.C. are not sustainable.
4. Section 377(1) of Cr. P.C. empowers the State Government to file appeal against the sentence before the High Court on the ground of inadequacy of sentence. Section 377(2) empowers the Central Government to file appeal before the High Court against sentence on the ground of its inadequacy. It is clear from Sections 377(1) and (2) of the Cr. P.C. that the State Government or the Central Government, as the ease may be can file appeal before the High Court against sentence on the ground of inadequacy, irrespective of the fact that the prosecution was on the basis of the police charge or a private complaint. Therefore the 1st respondent has contended that the. provisions under Section 377 of the Crl. P.C. is the only remedy available to the aggrieved party to challenge the sentence on the ground of its inadequacy and there is no provision in the Cr.P.C. enabling the complainant to file a revision before the Sessions Court challenging the inadequacy of sentence. Therefore, according to him, Section 482 of the Cr. P.C. cannot be resorted to by the petitioner herein to do something which is prohibited by the Cr. P.C. The contention of the Ist respondent that the revision before the Sessions Court is not maintainable has found favour with the Sessions Court and in support of the finding that a revision challenging the inadequacy of the sentence is not sustainable, the Sessions Court has relied upon a decision of the Division Bench of the Madras High Court in Inder Krishnamoorthy, 1984 Cri LJ 243. In the impugned order the learned Sessions Judge has quoted portions of that judgment in extenso. The Division Bench of the Madias High Court has observed as follows (at p. 247 of Cri LJ):
It may be remembered that in that case, a private complaint had moved the Sessions Judge under Section 399, Cr. P.C, for enhancement of the sentence awarded to the accused,. The revision was held sustainable by this Court in view that since the State had no part to play in the proceeding, the complainant did not stand precluded from seeking enhancement of sentence. The view is not correct, because Section 377, Cr. P.C. has conferred a right of appeal for enhancement of sentence only on the State and Central Governments and, as already pointed out, it is open to the State Government to file an appeal for enhancement of sentence even in cases instituted on private complaints. In Ramu Ammal v. E. Venkatachalam (Crl. R.C. 26/1980 - Order dated Nov. 17, 1981), the ratio laid down is that it is open to a complainant to file a revision before the Sessions Judge against an order of acquittal. This is clearly contrary to Section 378 and Sub-section (4) of Section 401. The complainant has been granted a right of appeal under Sub-section (4) of Section 378 and if he has failed to avail of that right, Sub-section (4) of Section 401 precludes him from filing a revision.
5. The counsel for the petitioners vehemently contended that in view of, the fact that the complainant-petitioner has no right of appeal before the High Court challenging the inadequacy of the sentence as provided under Section 377 of the Cr. P.C, the right of the petitioner to prefer revision challenging the inadequacy of sentence before the Sessions Court is not precluded under Section 401 (4) of the Cr. P.C. Section 401 of the Cr. P.C. which deals with the High Court's power for revision reads as follows :
401. High Court's powers of revision- (1) 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 Section 392.
(2) 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 defense.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
It is clear from Section 401(4) that here an appeal lies under the provisions of the Code of Criminal Procedure and no appeal is preferred, the revision is not maintainable at the instance of the party who could prefer appeal against the judgment.
6. Section 399 of the Cr.P.C. deals with the powers of the Sessions Judge regarding revision. Section 399 of the Cr. P.C. reads as follows :
399. Sessions Judge's powers of revision- (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) There any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
It is clear from Section 399 that the Sessions Judge can exercise all or any of the powers which can be exercised by the High Court under Sub-section (1) of Section 401 of the Code. Under Sub-section (1) of Section 401 of the Cr. P.C. the High Court can 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.
7. Section 386 of the Cr. P.C. deals with the powers of the appellate Court, which reads as follows :
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 retried 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 retried 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.
Section 386(c) provides for appeal for enhancement of sentence. Therefore, by virtue of Sections 401(2) and 399 of the Cr. P.C. the Sessions Court has powers to consider the enhancement of sentence since the Sessions Court is placed on par with the High Court under Section 399 of the Cr. P.C. But in view of the difference in the wording of Sections 401(1) and 399( 1) of the Cr. P.C, the Sessions Judge is not competent to exercise suo motu revisional jurisdiction. In Section 401(1) while dealing with the revisional powers of the High Court, it is stated that 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 can exercise its revisional jurisdiction. But in Section 399(1) providing revisional jurisdiction of the Sessions Judge, the phrase 'otherwise comes to its knowledge' found in Section 401 (1) is absent. Therefore, the Sessions Judge is not entitled to invoke jurisdiction by otherwise comes to his knowledge and the revisional jurisdiction of the Sessions Judge is limited to any proceeding the record of which has been called for by himself. This finding of mine is supported by the decision of a single Judge of this Court in John Samuel v. State of Kerala, 1985 Ker LT 902.
8. The next point to be considered is whether the provisions of Section 377 of the Cr. P.C. empowering the State Government and the Central Government to prefer appeal before the High Court challenging inadequacy of the sentence preclude the petitioner from challenging the same. In the decision in Prabhudas v. Babubhai 1977 Cri LJ 1666 a Division Bench of the Gujarat High Court has observed as follows (at pp. 1671 -72 of Cri LJ) :
14. Thus, there is no escape from the conclusion that the Sessions Judge has power to enhance sentence in revision subject to the limitation set forth in Sub-section (4) of Section 401 viz. in a case where an appeal lies and no appeal is brought, proceeding by way of revision cannot be entertained at the instance of the party who could have appealed. In a way this sub-section would also provide an answer to the argument that in view of conferment of right of appeal against the sentence, interference with sentence in revision is excluded. The Legislature could have wholly excluded exercise of power of revision where an appeal lies. Instead, there was partial exclusion of revisional proceeding at the instance of the party who could have appealed.
9. In the decision in Bachan Singh v. State of Punjab (1979) 4 SCC 754 : 1980 Cri LJ 211 the Supreme Court has observed as follows (at pp. 212 and 213 of Cri LJ) :
7. As has been stated, a petition was filed under Section 401, Cr. P.C. for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under Section 377....
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10. ...It has to be appreciated that in respect of the petition which was filed under Section 401, Cr. P.C. for the exercise of the High Court's powers of revision, it was permissible for it to exercise the power of a Court of appeal under Section 386 for enhancement of the sentence, and if that had been done, there is no justification for the argument that the enhancement was illegal.
Therefore, it is clear from the above decision of the Supreme Court that the High Court has jurisdiction in a revision filed under Section 401 of the Cr. P.C. to enhance the sentence even though no appeal is preferred under Section 377 of the Cr. P.C. by the State challenging the inadequacy of the sentence, as he could not file an appeal under Section 377 of the Cr. P.C. to enhance the sentence.
10. In the decision in Provident Fund Inspector v. Mohammed 1980 Ker LT 698 a Division Bench of this Court has held that the revision filed by the complainant, the Provident Fund Inspector therein challenging the judgment due to inadequacy of the sentence before this Court is maintainable under Section 401 of the Cr. P.C.
11. In the decision in Food Inspector, Mangalore Municipality v. K.S. Raphael, 1981 Cri LJ 1149 a single Judge of the Karnataka High Court observed as follows (at pp. 1153-54 of Cri LJ):
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 Saw.
12. In the decision in Sahab Singh v. State of 1 Haryana 1990 Cri LJ 1202 : AIR 1990 SC 1188 the Supreme Court has observed as follows (Para 4):
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. 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 exercising 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.
13. In the decision in Darshan Lal v. Indra Kumar Mehta 1980 All LJ 217 a Division Bench of the Allahabad High Court has observed as follows (at p. 218 of All LJ) :
4. According to Section 397(1) a Sessions Judge can call for and examine the record of any proceedings of any inferior criminal Court situate within his jurisdiction for satisfying himself as to the correctness, legality or propriety of any finding, sentence or order. The grievance of the applicant in the revision filed by him before the trial Court was wholly inadequate. The Sessions Judge could, therefore, examine that question in view of the powers conferred on him by Sub-section (1) of Section 397 of the Code of Criminal Procedure. Further, under Sub-section (1) of Section 399 of Sessions Judge, while dealing with a revision, can exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. By this it would follow that if the High Court, while dealing with a revision can enhance the sentence, the Sessions Judge can also do it. According to Sub-section (1) of Section 401 the High Court, while dealing with a revision, can exercise any of the powers conferred on an appellate Court, by Section 386 of the Code. According to Clause (c) of Section 386 of the Code, the appellate Court can, in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same. In view of this provision contained in Section 386, Cr. P.C. it should be held that the High Court, while dealing with a revision, can enhance the sentence. As already stated earlier the powers of a Sessions Judge, while dealing with a revision, are the same as that of the High Court. Since the High Court can enhance the sentence while dealing with the revision, the Sessions Judge can also do so.
14. It is clear from the above rulings of the various High Courts and the Surpeme Court that the failure of the State Government to prefer appeal before the High Court challenging inadequacy of the sentence under Section 377 of the Cr. P.C. will not preclude the jurisdiction of the High Court and Sessions Court to consider the inadequacy of the sentence on the basis of the revision filed by the complainant or the interested party challenging inadequacy of sentence except in cases such revisions are barred under Sub-section (4) of Section 401 of the Cr. P.C. Therefore the decision of the Division Bench of the Madras High Court reported in 1984 Cri JJ 243 (In re: Krishnamoorthy) to the effect that the High Court has no jurisdiction to consider whether the sentence is inadequate in a revision filed by the complainant in a private complaint, is not good law to be followed in view of the authoritative rulings of the apex Court. Hence the order passed by the learned Sessions judge relying upon the above decision of the Madras High Court dismissing the revision petition on the ground that it being filed by the complainant challenging the inadequacy of the sentence is not maintainable, is also not sustainable.
15. The contention of the 1st respondent that the provisions of Section 377 is a bar against a revision seeking enhancement of the sentence which found favour with the Sessions Court, is absolutely unsustainable in view of my finding that such a revision is maintainable under Sections 401 and 399 of the Cr. P.C.
16. It is the common case that She 1st respondent has filed an appeal before the Sessions Court against the finding of guilt, conviction and sentence entered by the trial Court against him. Therefore, the Sessions Court will have an opportunity to consider the adequacy of sentence passed by the trial Court. Therefore, the contention of the 1st respondent that in view of the fact that the Sessions Court has got power to enhance the sentence in the appeal preferred by him, if found necessary, the revision filed by the petitioner herein to enhance the sentence is unnecessary and is intended to harass the 1st respondent, is absolutely of no force. The fact that the appellate Court is empowered to enhance the sentence in appropriate cases after giving an opportunity to the accused to be heard regarding the sentence even if no appeal is filed seeking enhancement of sentence, will no preclude either the State or the complainant or interested party from moving the Sessions Court by way of revision to enhance the sentence. Therefore, it is clear that the Sessions Court has got ample power as the revisional Court as well as the appellate Court to enhance the sentence in a revision preferred by the complainant or interested party and therefore, the order passed by the learned Sessions Judge that the revision preferred by the petitioner seeking enhancement of sentence is not maintainable, is absolutely illegal and not sustainable.
17. Therefore, this Crl. M. C. is allowed and the impugned order is set aside. The learned Sessions Judge is directed to consider the revision filed by the petitioner for enhancement of sentence on merits and to pass appropriate orders along with the appeal preferred by the 1st respondent challenging the finding of guilt, conviction and sentence entered by the trial Court.