Code of Criminal Procedure, 1973: s.377 – Session Court awarded to the appellant 10 years rigorous imprisonment for offence under s.302 IPC – On State’s appeal under s.377, High Court enhanced the sentence from 10 years to life imprisonment – On appeal, held: Once the Sessions Judge found the appellant guilty for commission of the offence of the murder punishable under s.302 IPC, the only punishment that can be awarded in law is either the “death penalty” or “imprisonment for life” and the “fine” – s.302 IPC, in clear terms, provides that “whoever commits murder shall be punished with “death” or “imprisonment for life” and shall also be liable to “fine” – Any punishment less than the life imprisonment, as prescribed under s.302 IPC, if awarded by any Court is per se illegal and without authority of law – Indeed, there is no such discretion left with the Court in awarding the punishment except to award the punishment which is prescribed under s.302 IPC – Penal Code, 1860 – s.302 – Sentence/Sentencing.
Code of Criminal Procedure, 1973: s.377 – Object of – Held: The object of s.377 is that when the State files an appeal seeking enhancement of jail sentence awarded by the Sessions Judge, the jail sentence cannot be enhanced unless the accused is given an opportunity to defend it – The accused is also entitled to pray for his acquittal or award of lesser punishment – If the accused, after service of notice fails to raise this plea then the High Court would be justified in deciding the State’s appeal on merits which is confined to only for enhancement of jail sentence – Therefore, the accused cannot later claim remand the case for rehearing of the appeal.
Code of Criminal Procedure, 1973: s.377(3) – Requirement under, non-compliance – Plea by appellant that he was deprived of his right to oppose the appeal and also his right to urge the grounds for his acquittal as provided in s.377(3) of the Code; that appellant was not afforded adequate opportunity to defend himself in the appeal filed by the State for enhancement of jail sentence; that sufficient time was not given to amicus curiae to prepare the case which caused prejudice to the appellant – Held: Plea is not sustainable – Notice of appeal was duly served on the appellant – It was not the case of the appellant that he had no knowledge of filing of the appeal by the State against him or there was any infirmity in effecting service of notice of appeal which rendered the proceedings in appeal as bad in law – Despite notice having been served personally on the appellant, he did not appear – Though, the appellant had an independent right of appeal but he did not file any regular appeal questioning the legality of the order of the Sessions Judge convicting him for commission of the offence of murder – High Court, having found that there was no representation on behalf of the appellant despite personal service effected on him, was justified in appointing a lawyer as amicus curiae to safeguard the appellant’s interest and to assist the Court as well – The amicus curiae had never made any complaint in the High Court for not giving him more time for preparation of the case – High Court, therefore, ensured compliance with s.377(3).
Dismissing the appeal, the Court
HELD: 1. There was due compliance with the requirements of Section 377(3) of the Code by the High Court and, therefore, no fault could be noticed in the reasoning and conclusion arrived at by the High Court so far as the compliance of Section 377(3) of the Code is concerned. The object of Section 377 of the Code is that when the State files an appeal seeking enhancement of jail sentence awarded by the Sessions Judge, the jail sentence cannot be enhanced unless the accused is given an opportunity to defend it. The accused is also entitled to pray for his acquittal or award of lesser punishment. If the accused, after service of notice fails to raise this plea then the High Court would be justified in deciding the State’s appeal on merits which is confined to only for enhancement of jail sentence. Therefore, there is no ground to remand the case for rehearing of the appeal. [Paras 17, 23] [693-F ; 694-E]
2. Once the Sessions Judge found the appellant guilty for commission of the offence of the murder punishable under Section
302 IPC, the only punishment that can be awarded in law is either the “death penalty” or “imprisonment for life” and the “fine”. Any punishment less than the life imprisonment, as prescribed under Section 302 IPC, if awarded by any Court is per se illegal and without authority of law. [Paras 25, 27] [694-H; 695-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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