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Showing contexts for: section 401 of crpc in Jagdish Singh vs State on 17 October, 2000Matching Fragments
(6). On the other hand Shri M.M. Ranjan learned counsel for the accused respondent contended that adequacy of the sentence can be challenged Under Section 377 Cr.P.C. only by the Public Prosecutor on the direction of the State Government to present appeal to the High Court on the ground of inadequacy of the impugned sentence inasmuch as by virtue of bar under Sub-section (4) of Section 401 Cr.P.C., this revision petition cannot be entertained by this Court. Lastly Shri Ranjan contended that even otherwise this court by virtue of its jurisdiction Under Section 401, can exercise any of powers conferred on a Court of appeal by Section 386 Cr.P.C. for altering the nature or the extent of the sentence so as to enhance or reduce the same, and in this view of the matter, this Court ran dismiss the revision petition for enhancement of the impugned sentence keeping in view the nature of injuries found on the injured persons and confessional statement of the accused.' (7). Admittedly the State has not preferred any appeal for enhancement of the impugned sentence, by invoking Section 377, Cr.P.C. Since inadequacy of impugned sentence is challenged Under Section 397 read with Section 401 Cr.P.C., first of all I would tike to have a brief resume as to the scope of revisional powers of this Court. Section 397 Cr.P.C. confers upon the High Court by calling for record to exercise powers of revision for satisfying itself as to the correctness, legality or propriety of any sentence. Section 401 Cr.P.C. does also postulate High Court's powers of revision. According to its sub section (1), ''if otherwise comes to its knowledge" the High Court in its discretion can also exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 & 391 Cr.P.C.. As per sub section (4) of Section 401 Cr.P.C. where an appeal lies under Cr.P.C. and no appeal is brought, no proceeding byway of revision shall be entertained at the instance of the party who could have appealed. Moreover, according to sub sec. (3) of Section 401 Cr.P.C., nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction meaning thereby that sub sec. (3) restricts the scope of its revisional powers as to conversion of findings acquittal into conviction. This evidently means that the revisional powers are to be exercised very sparingly and that too in exceptional case only.
(12). Now the decks are clear. The powers of revision Under Section 397 read with Section 401 Cr.P.C. can be exercised by the High Court in consonance with its appellate powers conferred by Section 386 Cr.P.C. for reversal of the conviction and/or the sentence under appeal either for acquittal or enhancement by way of alteration of the finding challenged in appeal, as has been emphatically envisaged in Section 401(1) Cr.P.C. Powers of revision Under Section -101(1) Cr.P.C. is in the realm of discretion either by exercising such powers suo moto calling for record in any criminal proceedings or if it otherwise comes to the knowledge of the High Court.
(13). Section 401(1) Cr.P.C. authorises the Court of Revision viz. High Court to exercise its appellate power as conferred by Sections 386, 389, 390 & 391 Cr.P.C.. Appellate powers of this Court with regard to enhancement of sentence are conferred by sub section (c) of Section 386 Cr.P.C.
(14). It is no doubt true that no proceedings by way of revision can be entertained at the instance of the party who could have appealed. There is no specific or express provision in the Code of Criminal Procedure prescribing the right of preferring an appeal at the instance of the complainant against the sentence for enhancement thereof. The appeal either against acquittal or for enhancement of the sentence can be brought by the State directly through Public Prosecutor as envisaged expressly in Section 375 & 377 Cr.P.C. as the case may be. So sub Section (4) of Section 401 Cr.P.C. puts bar only on the State if appeal though lies but is not brought by it. It means that remedy of appeal for enhancement of sentence is available to the State and if the State does not exhaust such remedy of appeal though lies but does not bring it, then the State cannot bring revision petition for enhancement of the sentence nor the court of Revision viz. High Court can entertain such revision, by virtue of Section 401(4) Cr.P.C.
(20). It is no doubt true that the enormity of the crime committed by the accused is relevant for measuring the sentence. The Court has to consider the totality of the sentences which the accused has to undergo, if the sentences are to be consecutive or otherwise. But the Court cannot take a narrow view of the whole matter with the enormity of the crime on the forefront.
(21). In the case at hand, though the incised wounds were found on the person of injured Smt. Bhagwati on her (1) left side face at TM joint, (2) at thoraco cervical vertebra, (3) upper and medial border of scapula while five incised wounds with one swelling were found on the person of injured Rama on her (1) back of tower 1/3rd of left forearm, (2) middle 1/3rd of right forearm, (3) right knee, (4) left side of occipital part of scalp, (5) right side of chin and (6) tower lip, but curiously enough x ray report of injured Smt. Bhagwati of her left TM joint, thoraco cervical region, right scapula with shoulder, has been produced while despite doctor's advise for x-ray, no report of injured Rama was produced or exhibited and as per x-ray report (ExP6) of Bhagwati, no bone injury was found on the parts of her body (supra). Thus there is no medical report established on record as to the nature of injuries found on the persons of both the injured whether grievous or simple. Though in his statement Under Section 313 Cr.P.C. the respondent (accused) pleaded guilty by accepting the version given out by Babu Singh (PW1) as to the events of the incident and on his plea of guilt the accused has been convicted of the aforesaid offences but in my considered view, in the light of the nature of injuries, referred to above, so also keeping in view the extent of the prosecution evidence led on record, including medical evidence as discussed above, there are no sufficient ground for interfering by exercising either appellate power under Section 386 Cr.P.C. in consonance with power of revision of this Court Under Section 401 Cr.P.C. so as to enhance the impugned sentence either Under Section 377 Cr.P.C. or reverse the finding of impugned sentence Under Section 386(c)(i) or alter the nature and extent of the impugned sentence so as to enhance or reduce it Under Section 386(c)(iii) Cr.P.C.