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Showing contexts for: Section 377 criminal procedure code in State Of Rajasthan vs Kishanlal on 10 May, 2002Matching Fragments
Learned counsel for the respondent, however, submitted that the State of Rajasthan has preferred, by special leave, the present appeal challenging the legality of the order sentencing the respondent to the period already undergone and the effect of the appeal being allowed is that the sentence of the respondent may be enhanced to a minimum of 7 years. He, therefore, submitted that this Court should permit the respondent to argue for an acquittal since the appeal by special leave, for all practical purposes, is an appeal for enhancement of the sentence. It is, therefore, submitted that this Court in exercise of its extra ordinary jurisdiction under Article 136 of the Constitution of India may apply the principle analogous to the one enshrined in Section 377(3) of the Code of Criminal Procedure which in term provides that when an appeal is filed against the sentence on the ground of its inadequacy, the accused while showing cause may plead for his acquittal or for the reduction of the sentence.
The next question which arises for consideration is whether this Court should apply the principles enshrined in Section 377(3) of the Code of Criminal Procedure to an appeal before this Court for enhancement of sentence.
Learned counsel for the State submitted that Section 377 of the Code of Criminal procedure is applicable only to an appeal for enhancement of sentence preferred before the High Court. In terms that section does not apply to an appeal before the Supreme Court under Article 136 of the Constitution of India for enhancement of sentence.
Learned amicus curiae rightly submitted that this question is no longer res integra. In the State of U.P. vs. Dharmendra Singh and another : JT 1999 (7) SC 207 this Court considered Section 377(3) of the Code of Criminal Procedure and observed, thus :-
"A perusal of this Section shows that this provision is applicable only when the matter is before the High Court and the same is not applicable to this 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 this Court in criminal matters is not provided under the Code except in cases covered by Section 379 of the Code. An appeal to this Court under Article 136 of the Constitution is not the same as a statutory appeal under the Code. This Court under Article 136 of the Constitution is not a regular court of appeal which an accused can approach as of right. It is an extraordinary jurisdiction which is exercisable only in exceptional cases when this 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. While exercising this jurisdiction, this Court is not bound by the rules of procedure as applicable to the courts below. This Court's jurisdiction under Article 136 of the Constitution is limited only by its own discretion (See Nihal Singh & Ors. v. The State of Punjab [AIR 1965 SC 26]). 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..
This Court, therefore, permitted the respondents to argue for an acquittal in the appeal preferred by the State of U.P. for enhancement of the sentence by adopting analogous provision found in Section 377 (3) of the Code of Criminal Procedure.
Learned amicus curiae submitted that in exercise of jurisdiction under Article 136 of the Constitution of India, this Court has set up judicious precedents for the purpose of averting miscarriage of justice and that is why in some cases where the Court reached the conclusion that no conviction of any accused is possible, the benefit of that decision was extended to the co-accused, also though he may not have challenged the order by means of an appeal petition to this Court. (See Raja Ram and others vs. State of M.P. : (1994) 2 SCC 568 and Dandu Lakshmi Reddy vs. State of A.P. : (1999) 7 SCC 69.) Learned amicus curiae submitted that this is an appropriate case where he should be permitted to argue for the acquittal of the respondent and we permitted him to do so.