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Kumar Ghimirey Vs. The State of Sikkim - (Supreme Court) (22 Apr 2019)

High Court can exercise its revisional jurisdiction to enhance sentence but it is imperative to notify the convict



Present appeal has been filed by the Appellant against the judgment of High Court dismissing Criminal Appeal filed by the Appellant questioning the order of conviction and sentence passed by the Special Judge (POCSO Act, 2012) convicting the Appellant under Section 9/10 of the Protection of Children from Sexual offences Act, 2012 (POCSO Act, 2012), Section 341 of Indian Penal Code, 1860 (IPC). The question involved in present case is whether the High Court erred in enhancing the punishment whereas no appeal was filed for enhancement of the punishment.

As per Section 386 Clause (b) of Code of Criminal Procedure, 1973 (CrPC), in an appeal from a conviction although the Appellate Court can alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature or the extent, of the sentence, but not so as to enhance the same. Under Section 386(b)(iii) of CrPC, in an appeal from a conviction, for enhancement of sentence, the Appellate Court can exercise the power of enhancement. The Appellate Court in an appeal for enhancement, can enhance the sentence also. The proviso to Section 386, further, provides that the sentence shall not be enhanced unless the Accused had an opportunity of showing cause against such enhancement.

Present is a case where the High Court has enhanced the sentence in appeal filed by the Accused challenging his conviction. The High Court can also exercise its power under Section 401 of CrPC in an appropriate case. Section 401 of CrPC provides for the power of revision to the High Court. The High Court under Section 401 of CrPC can exercise any of the powers conferred on a Court of Appeal by Sections 386, 390 and 391 or on a Court of Session by Section 307 of CrPC. The High Court could have very well exercised power under Section 401 of CrPC read with Section 386(b) (iii), could have enhanced the sentence but the said course is permissible only after giving notice of enhancement.

In the case of Sahab Singh and Ors. v. State of Haryana, High Court held that, even if no appeal is filed by the State for enhancement of sentence can exercise suo motu power of revision under Section 397 read with Section 401 of CrPC but before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice.

The submission of the Appellant that, the sentence imposed on the Appellant is excessive is rejected. The learned Special Judge has marshalled the evidence. The victim herself appeared as PW. 1. She was thoroughly cross-examined by the Accused, the evidence of victim has proved, the charge levelled against the Accused which evidence was corroborated by evidence of PW. 6 and PW. 7. The medical evidence also fully corroborated the charge on the Appellant. The High Court has rightly affirmed the finding of the conviction of the Appellant.

The Special Judge after considering the factors imposed the sentence of seven years. The Special Judge has noted that, the offence committed against the minor girl child (7 years) cannot be viewed lightly. The submission of the learned Counsel for the Appellant that the sentence awarded ought to be reduced to five years is rejected.

The direction of the High Court enhancing sentence from seven years to 10 years RI is set aside. The sentence awarded by the Special Judge i.e. seven years under POCSO Act, 2012 and one month under Section 341 of IPC is maintained. The rest of judgment of the High Court is affirmed. The appeal is partly allowed.

Relevant : Sahab Singh and Ors. v. State of Haryana MANU/SC/0224/1990


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