Patna High Court
Pritam Sao vs The State Of Bihar on 26 February, 2018
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.139 of 2015
Arising Out of PS.Case No. -389 Year- 2011 Thana -M AKHDUMPUR District- JEHANABAD
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Pritam Sao Son of Sri Krishna Sao, Resident of Village-Tehta, P.S.-Makhdumpur,
District-Jehanabad.
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
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Appearance:
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Nilesh Kumar, Adv.
Mr. Ritwaj Raman, Adv.
For the State : Smt. Abha Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 26-02-2018
1. Ah-hoc Additional Sessions Judge, Ist, Jehanabad
vide judgment dated 27.01.2015 acquitted accused Kanhaiya Sao,
Pawan Sao, Champa Devi, Krishna Sao, Sakunti Devi, Phulwa
Devi as observed under para-22 of the judgment while convicted
the appellant Pritam Sao for an offence punishable under Section
304B IPC as well as 201 of the IPC and accordingly, sentenced to
undergo R.I. for ten years under Section 304B IPC and R.I. for
three years under Section 201 IPC as well as to pay fine
appertaining to Rs.25,000/- against both heads and in default
thereof, to undergo S.I. for three months, additionally with a
further direction to run the sentences concurrently vide judgment
of conviction dated 27.01.2015 and order of sentence dated
31.01.2015in Sessions Trial No.413 of 2012/63 of 2014.
2. Informant, Manohar Sao (PW.3A) filed written report on 26.11.2011 alleging inter alia that his daughter Rubi Kumari was married with Pritam Sao, son of Krishna Sao in the year Patna High Court CR. APP (SJ) No.139 of 2015 2 2006. After marriage, while she was staying at her Sasural, her father-in-law Krishna Sao, mother-in-law Sakunti Devi, Bhaisur Prakash Sao, Kanhaiya Sao, Gotini Phulwa Devi, Champa De vi, Debar Pawan Sao and husband Pritam Sao began to torture her for procurement of dowry. Pritam Sao was demanding Rs.1,50,000/- as dowry and in default thereof, was threatening to kill. Rubi, deceased used to intimate through letters regularly. She had talked on 25.11.2011 at about 08:00 PM and was in good condition. On the same day at about 10:00 PM his relative Jitendra Prasad Sao, son of Darbari Sao of village-Tetua informed on mobile that his daughter Rubi Kumari along with his two children, namely, Aachal aged about three years and son Saurav aged about four years were murdered by burnt by Pritam Sao, Sakunti Devi, Krishna Sao, Phulwa Devi, Pawan Sao, Prakash Sao, Kanhaiya Sao, Champa Devi and concealed their dead body. They have tried to trace out but could not succeed. As disclosed by their neighbours, they (accused) have taken away to unknown destination being in precarious condition. It has also been disclosed that husband Pritam Sao had developed illicit relationship with his Bhabhi Phulwa Devi and in the aforesaid background, Phulwa and husband of Rubi, Pritam Sao were adamant to remove the hurdle.
3. Makhdumpur P.S. Case No.389/2011 was registered under Section 302/304B/201/34 of the IPC whereunder charge sheet was submitted and on the basis thereof, trial commenced and concluded in a manner as disclosed hereinabove. Patna High Court CR. APP (SJ) No.139 of 2015 3
4. Defence case as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also be en pleaded that deceased was of rigid temperament and on account thereof, she along with her children committed suicide. Furthermore, it has also been pleaded by Kanhaiya Sao, Champa Devi, Prakash Sao and Phulwa Devi that during course of occurrence were at Delhi, Pritam Sao to be at Bombay while, Pawan Sao, Krishna Sao and Sakunti Devi that they have got two houses, one was occupied by the deceased, her children and the second house was occupied by them. After hearing some sort of commotion they came out from their house and had seen flame in the house occupied by the deceased and the door having locked from inside whereupon they were taken out after breaking the door and were taken to Patna for treatment in precarious condition and during course thereof, they died. However, neither ocular nor documentary evidence has been adduced in support thereof.
5. In order to substantiate its case, prosecution had examined altogether eight PWs those are PW.1-Ganga Sao, PW.2- Asha Devi, PW.3-Mathura Sao, PW.3A-Manohar Sao, PW.4-Gopi Sao, PW.5-Ramavtar Sao, PW.6-Manoj and PW.7-Bindeshwari Paswan as well as had also exhibited written report Ext.1, letter written by Rubi Devi (one of the deceased) as Ext.2.
6. The learned counsel for the appellant while challenging the finding recorded by the learned lower court has submitted that while convicting and sentencing the appellant, the Patna High Court CR. APP (SJ) No.139 of 2015 4 learned lower court misinterpreted the evidences and that being so, the same is fit to be set aside. In order to substantiate the same, it has been submitted that there happens to be inherent flaw in prosecution case which, the learned lower court had completely ignored. In order to substantiate the same, it has been submitted that PW.2, PW.4, PW.5 who are co-villager of the appellant duly substantiated the theme of suicide/accidental fire having been committed by the deceased wherein she along with her two children sustained burn injury, who were rescued after breaking door as was closed from inside and then, shifted them to Patna for proper treatment. That being so, the learned lower court would have properly appreciated the same but the learned lower court, while recording the finding of guilt against the appellant overlooked.
7. Now coming to remaining witnesses, it has been submitted that evidence of PW.3, 3A did not inspire confidence in the background of disclosure having been made by PW.1 who had disclosed that during conversation over mobile with Pawan Sao, he had recorded the same but, during course of investigation the aforesaid piece of evidence has not been produced before the I.O., PW.6 as well as part I.O. PW.7 whereupon the evidence of these witnesses, being deficient one would not have been relied upon by the learned lower court.
8. It has further been submitted that case of defence is found duly substantiated by the evidence of PW.7 who during course of inspection of the P.O. had found two houses Patna High Court CR. APP (SJ) No.139 of 2015 5 independent to each other. During course of inspection of the P.O. the I.O. had found presence of Sakunti Devi at the other house wherefrom she was arrested and so, the place of residence of remaining persons separate from the place of residence of deceased, is found duly proved and that being so, they could not be allowed to be roped in this false case.
9. Furthermore, it has been submitted that in due course of time, the informant and his family members came to know regarding actual affair whereupon, case has been compromised, whereupon, after recalling the informant PW.3A demolished the edifice and that being so, there was no occasion for the learned lower court to record judgment of conviction and sentence against the appellant.
10. During course of argument, when a query has been made from the learned counsel for the appellant that death of three persons had occurred. The first happens to be that of Rubi Kumari, daughter of the informant while Saurav aged about four years and Aachal aged about three years, sibling of Rubi Kumari and appellant have also died, charge under Section 302/34 as well as under Section 304B of the IPC, 201 of the IPC were framed against the appellant as well as acquitted accused then, in that circumstance, considering the finding recorded under paragraph 22 of the judgment impugned what could be the proper, the legal recourse inconsonance with the acquitted accused and in likewise manner with regard to appellant and others (acquitted) concerning Aachal and Saurav as, their death could not be subject to Patna High Court CR. APP (SJ) No.139 of 2015 6 prosecution under Section 304B of the IPC, the learned counsel for the appellant has submitted that as State has not challenge d the finding recorded by the learned lower court, on account thereof, the High Court is precluded to take any step against them and in likewise manner, there happens to be finding of the learned lower court against the appellant also, that being so, appellant also could not be held responsible to answer the death of Aachal as well as Saurav. So far evidence, as referred did not justify the conviction and sentence recorded under Section 304B of the IPC, 201 of the IPC on account thereof, this appeal is fit to be allowed.
11. On the other hand the learned Additional Public Prosecutor controverting the submission made on behalf of appellant has submitted that it is true that no appeal has been preferred against the judgment of acquittal relating to other accused by the State, that would not debar the appellate court to exercise its power under Section 484 of the Cr.P.C. Furthermore, it has also been submitted that from the judgment impugned it is evident that learned lower court had proceeded with the same with predetermination that only appellant, being husband of the deceased is to be convicted for dowry death as well as concealment of the dead body, evidence of the crime in order to screen themselves and that happens to be reason behind that the learned lower court had failed to analyze, scrutinize, the evidences relating to death of Aachal as well as Saurav whereupon, judgment needs interference at the present moment.
12. The first and foremost issue for adjudication is with Patna High Court CR. APP (SJ) No.139 of 2015 7 regard to property of the judgment impugned.
13. The Hon‟ble Apex Court in Mishrilal & Ors. Vs. State of M .P. & Ors. reported in (2005) 10 SCC 701 has held:
"6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined-in- chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6-2-1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses."
The same view has also been reported in Yakub Ismailbhai Patel v. State of Gujarat reported in (2004) 12 SCC 229 (Para38). That being so, recalling of the witnesses on the score of compromise is not all found favour and so, the activity of learned lower court is found aversed.
14. The facts of the case is found duly discernable, under two independent compartments. The first one is relating to causing of death of Rubi Kumari and the second is with regard to Patna High Court CR. APP (SJ) No.139 of 2015 8 death of two minor children Saurav aged about four years as well as Aachal aged about three years.
15. Rubi was married with the appellant. She died at her Sasural within seven years of marriage. As per evidence, there was demand of money and for that, there was insistence and for that torture was there, which lastly cost her life. Because of the fact that majority of the witnesses have not substantiated the aforesaid demand to be in lieu of dowry coupled with the fact that before her death she was subjected to cruelty over fulfillment of demand of dowry and that being so, one of the link of Section 304B is found missing. Ext.2 is not going to give any support thereupon.
16. So far second part is concerned, there was murder of two innocent kids for that the accused persons could not have been dealt with under guise of an offence punishable under Section 304B of the IPC nor could be found guilty thereof and that being so, having an alternative charge of murder under section 302/34 IPC would have been properly scrutinized as well as adjudicated upon. From the judgment impugned, it is apparent that learned lower court had intermingled the issue and proceeded, opined and convicted the appellant while acquitting the others without exhorting the independent event only for an offence punishable under Section 304B IPC as is evident from para-17 and onward of the judgment impugned.
17. Admittedly, death happens to be within the four walls of the house of appellant as well as acquitted accused. It is not always possible for the prosecution to prove all the Patna High Court CR. APP (SJ) No.139 of 2015 9 circumstances, more so, when such circumstances is within the special knowledge of the accused whereupon Section 106 of the Indian Evidence Act comes into play to relieve the prosecution from proving such circumstance, which cannot be proved by adducing evidence. And so, the accused is duty bound to offer explanation of such circumstance. It is the accused who has to offer, and if offers false explanation or no explanation of such circumstance, the presumption will go against the accused.
18. In Gajanan Dashrath Kharate v. State of Maharashtra reported in 2016 Cr.L.J. 1900, it has been held:
"12. Apart from the oral evidence, the case of the prosecution is also strengthened by recovery of bloodstained clothes of the appellant. During chemical analysis, it was found that the shirt of the appellant contained „B‟ Group blood which is the blood group of deceased Dashrath. The appellant has not offered any explanation as to the presence of „B‟ Group blood on his clothes, which is yet another incriminating circumstance against the appellant.
13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4- 2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4- 2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at Patna High Court CR. APP (SJ) No.139 of 2015 10 all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
19. In Prithipal Singh v. State of Punjab reported in (2012) 1 SCC 10, it has been held:
"53. In Sta te of W.B. v. Mir Mohammad Omar (2000) 8 SCC 382 this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambhu Nath Mehra v.
State of Ajmer AIR 1956 SC 404, Sucha Singh v.
State of Punjab (2001) 4 SCC 375 and Sahadevan v. Sta te (2003) 1 SCC 534.)"
20. In Kiriti Pal v. State of W.B. reported in 2015 Cr.L.J. 3152, it has been held:
"15. Having regard to the time gap being small, it is for the first appellant to explain the circumstances how and where and in what manner he parted company with Anjali. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last Patna High Court CR. APP (SJ) No.139 of 2015 11 found alive has to explain the circumstances in which he parted company. As pointed out by the trial court and the High Court, the first appellant has failed to discharge the onus and failed to offer any explanation as to how, as to when and how and in what manner he parted the company of Anjali, is a strong militating circumstance against the first appellant Kiriti Pal. There is force in the submission of the learned counsel for the State that the first appellant Kiriti Pal failed to offer any explanation, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act."
21. Now coming to the finding recorded by the learned lower court against the appellant, relating to dowry death of Rubi Kumari is concerned, it is evident that although the objective finding of the I.O. PW.7 was not at all substantiating the plea of the appellant, the deposition of PW.6 has not been recorded in legal way as, the statement whatever been incorporated relating to witness Ramavatar, PW.5 at the end of the prosecution is not at all found legally permissible in the background of the fact that he was not at all declared hostile. So far evidence of PW.1, PW.3, PW.3A are concerned, their evidences have not been properly considered. In likewise manner, the evidence of PW.2 and PW.4 should have been scrutinized in the background of evidence of PW.7.
22. So far power of the appellate court is concerned, Section 386 of the Cr.P.C. does provide such eventuality and so far acquitted accused are concerned, the aforesaid exercise could be in accordance with Section 482 of the Cr.P.C. as, the High Court could take recourse thereof, in order to secure the ends of justice. The Hon‟ble Apex Court in Rishipal Singh vs. State of Patna High Court CR. APP (SJ) No.139 of 2015 12 U.P. reported in 2014(4) PLJR 118 (SC) has held:
"10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have thorough look at Section 482 Cr.P.C., which reads:-- "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any orders of this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice." A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straightjacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C."
23. In Gandi Doddabasappa v. State of Karnataka reported in (2017) 5 SCC 415, it has been held:
"25. We would first deal with the request of the appellant to permit him to withdraw this appeal. We have no hesitation in saying that this Court after hearing the parties and having been prima facie convinced, issued show-cause notice to the appellant for enhancement of sentence. In this backdrop, we cannot permit the appellant to withdraw the appeal. We say so because the show-cause notice issued to the appellant (accused) in terms of the order dated 8-9-2016, will have to be taken to its logical end being substantive proceedings ascribable to the jurisdiction of the appellate court under Section 386 or read with Sections 397 and 401 of the Criminal Procedure Code, 1973 (CrPC) and, in this case, plenary jurisdiction of the Supreme Court. The show-cause notice for enhancement of sentence must proceed on the principle underlying the exposition of law in Khedu Mohton v. State of Bihar (1970) 2 SCC 450. In that case, the complainant died during the pendency of appeal against Patna High Court CR. APP (SJ) No.139 of 2015 13 acquittal before the High Court and therefore, it was urged by the accused that the said appeal had abated. This Court rejected that plea of the accused, having found that the appeal abates only on the death of the accused. The Court then observed that once an appeal against acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant does not choose to prosecute it or is unable to prosecute it for one reason or the other. Applying the same analogy to a suo motu show-cause notice for enhancement of sentence issued by this Court after hearing both sides, it will be the duty of this Court to decide the same irrespective of the fact that the accused does not want to prosecute his appeal against conviction. It may be apposite to also refer to the decision of this Court in Deo Narain Mandal v. State of U.P. (2004) 7 SCC 257. In para 5 of the reported decision, this Court opined that since notice of enhancement of sentence was issued it is but proper in law that the court should hear the accused on merits of the case also even though the accused had not pressed his appeal on merits before the High Court. In that case, the accused had preferred appeal against reduced conviction before this Court. It is a well-established position in law that during the hearing of notice for enhancement of sentence, as held by this Court in U.J.S. Chopra v. Sta te of Bombay AIR 1955 SC 633, the accused will have the right also to show cause against his conviction when showing cause why his sentence should not be enhanced. Realising this position, the counsel for the appellant vehemently argued for acquittal of the appellant."
24. In Krishnan v. Krishnaveni reported in (1997) 4 SCC 241, it has been observed by the Apex Court:
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to pre vent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section
482. The power of the High Court, therefore, is Patna High Court CR. APP (SJ) No.139 of 2015 14 very wide. Howe ver, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order.
9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under sub- section (3) of Section 397, revisional jurisdiction can be invoked by "any person" but the Code has not defined the word "person". However, under Section 11 of the IPC, "person" includes any company or association or body of persons, whether incorporated or not. The word "person"
would, therefore, include not only natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word "person" for the purpose of limiting its right to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizable offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report a mistake of fact. In view of the principle laid down in the maxim ex debito justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code."
Patna High Court CR. APP (SJ) No.139 of 2015 15
25. In Prithipal Singh v. State of Punjab reported in (2012) 1 SCC 10, it has been held:
"35. In Eknath Shankarrao Mukkawar v. State of Maharashtra (1977) 3 SCC 25 this Court held: (SCC p. 28, para 6) "6. 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. The High Court‟s power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant 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. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court‟s exercise of power of revision, suo motu, which continues as before in the new Code."
36. In Surendra Singh Rautela v. Sta te of Bihar (2002) 1 SCC 266 this Court reconsidered the issue and held: (SCC p. 271, para 8) "8. ... It is well settled that the High Court, suo motu in exercise of revisional jurisdiction can enhance the sentence of an accused awarded by the trial court and the same is not affected merely because an appeal has been provided under Section 377 of the Code for enhancement of sentence and no such appeal has been preferred."
[See also Nadir Khan v. Sta te (Delhi Admn.) (1975) 2 SCC 406, Govind Ramji Jadhav v. Sta te of Maharashtra (1990) 4 SCC 718 and K. Pandurangan v. S.S.R. Velusamy (2003) 8 SCC
625.]
37. In Jayaram Vithoba v. State of Bombay AIR 1956 SC 146 this Court held that the suo motu powers of enhancement under revisional jurisdiction can be exercised only after giving notice/opportunity of hearing to the accused.
38. In view of the above, the law can be Patna High Court CR. APP (SJ) No.139 of 2015 16 summarised that the High Court in exercise of its power under Section 386(e) CrPC is competent to enhance the sentence suo motu.
However, such a course is permissible only after giving opportunity of hearing to the accused."
26. In Nadir Khan v. State (Delhi Admn.) reported in AIR 1976 SC 2205, it has been held:
"4. 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 bounden 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. in 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 Section 377 CrPC 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 Article 136 of the Constitution.
5. Section 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 Patna High Court CR. APP (SJ) No.139 of 2015 17 under Section 401 read with Section 386(c)(iii) CrPC are clearly supplemental to those under Section 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. There is therefore absolutely no merit in the contention of the learned counsel that the High Court acted without jurisdiction in exercising the power of revision suo motu, for enhancement of the sentence in this case. The application stands rejected."
27. In Sahab Singh v. State of Haryana reported in 1990 SCC (Cri.) 323, it has been held:
"4. Section 374 of the Code of Criminal Procedure („the Code‟ hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub-section (3) of Section 377 says that 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. Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, IPC. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself 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 any inferior Patna High Court CR. APP (SJ) No.139 of 2015 18 court. Section 401 further provides that in the case of any proceedings, 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 of the Code. Sub-section (2) of Section 401 provides that 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 defence. Sub-section (4) next provides that 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. It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under Section 377(1) of the Code. 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. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the trial court."
28. In depth scrutiny of the evidence is being forbidden so that, it should not cause prejudice to the appellant as well as, the matter is to be properly thrashed by the Division Bench as, the same is being referred to where, the appellant and others even would raise plea of acquittal.
Patna High Court CR. APP (SJ) No.139 of 2015 19
29. Accordingly, office is directed to issue show cause to the appellant as well as acquitted accused however Kanhaiya Sao, Pawan Sao, Champa Devi, Krishna Sao, Sakunti Devi, Phulwa Devi why not they be held guilty for an offence punishable under Section 302 along with other alleged petitioners of the IPC and accordingly, be sentenced. Because of the fact that the Patna High Court Rules prescribes adjudication by the Division Bench relating to offences prescribing more than ten years of imprisonment and that being so, it be listed before the Division Bench after taking permission from Hon‟ble the Chief Justice.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 29.01.2018
Uploading Date 26.02.2018
Transmission 26.02.2018
Date