Code of Criminal Procedure, 1973 – s.386 – Powers of the Appellate Court to enhance sentence in appeal against conviction – Conviction of the appellant for the offences punishable u/ss.3(a) and 4 of the POCSO Act and s.376 IPC for committing penetrative sexual assault on the minor victim, and sentenced to rigorous imprisonment for seven years and fine by the Special Court – Appeal against conviction by the appellant – High Court affirmed the finding of the Special Court as regards the commission of offence, however observed that the Special Court while convicting the appellant, overlooked the provisions of ss.5(m) and 6 of the POCSO Act and s.376(2)(i) IPC – High Court issued show cause notice to the appellant on enhancement of sentence and remitted the case to the Special Court for reconsidering the quantum of the sentence – Special Court convicted the appellant u/ss.5(m) and 6 of the POCSO Act to suffer life imprisonment and fine and also convicted for offence punishable u/ss.376(2)(i) IPC for which no separate sentence is provided – In appeal, the Division Bench of the High Court expressed its inability to proceed in the matter and instead suggested the High Court Legal Services take steps to restore justice to the appellant – Correctness: Held: Appellate court, in an appeal filed by the accused cannot, while maintaining the conviction, enhance the sentence – While exercising its appellate jurisdiction at the instance of the convict, the High Court cannot act as a revisional court, particularly, when no appeal or revision has been filed either by the State, victim or complainant for seeking enhancement of sentence against accused – In an appeal filed by the accused/convict, the High Court cannot suo motu exercise its revisional jurisdiction and enhance the sentence against the accused while maintaining the conviction – Power to enhance the sentence can be exercised by the appellate court only in an appeal filed by the State, victim or complainant provided the accused has had an opportunity of showing cause against such enhancement – 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 of sentence under appeal – Thus, even in an appeal for enhancement of sentence, unless the conditions prescribed in the form of provisos are complied with by the appellate court, there cannot be an enhancement of sentence – No appellant by filing an appeal can be worse-off than what he was – In an appeal filed by an accused against a judgment of conviction and sentence, he cannot be remitted to the trial court to impose a higher sentence on him – Single Judge of the High Court was not right in remanding the matter to the Special Court for enhancing the sentence to be imposed on the appellant-accused, that too, in an appeal filed by accused seeking setting aside of a judgment of conviction and sentence imposed on him – Consequently, the Special Court not right in enhancing the sentence to life imprisonment by following the said direction – Appellant while initially subjected to imprisonment of seven years, has completed actual sentence of eleven years and eight months – Orders of the High Court and consequently of the Special Court erroneous and liable to be set aside – To do the complete justice in exercise of powers u/Art.142, the original sentence of seven years of rigorous imprisonment imposed on the appellant restored – Instead of rehearing his appeal on the original sentence, the matter is concluded and the appellant is released from jail forthwith – Protection of Children from Sexual Offences Act, 2012 – ss.3(a), 4, 5(m), 6 – Penal Code, 1860 – ss.363-A,
376. [Paras 23, 26, 27, 29.1, 31-33, 34.4-37]
Jurisdiction – Appellate jurisdiction and revisional jurisdiction – Difference between:
Held: Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as on facts and is invoked by an aggrieved person – Ordinarily, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without it being invoked by a party – Extent of revisional jurisdiction is defined by the statute conferring such jurisdiction – Conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according to the procedure established by law and according to well defined principles of justice. [Paras 28, 28.4]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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