ORDER :

Leave granted.

2. FIR No.427 dated 18.9.2003 was registered at the Police Station-City Kaithal, District Kaithal, Haryana recording the incident where one Parmanand Goel suffered bullet wound injuries and other injuries and passed away on the same date. On investigation, three persons were charged for offences under Section 302 /34 IPC including the appellant. On trial being completed, two of the other appellants were found guilty and sentenced to life imprisonment in terms of the judgment dated 15th January, 2008. Since the appellant was absconding, only on his being apprehended in South Africa and expedited to India, the trial took place and he too was convicted by the judgment dated 17th March, 2010.

3. Insofar as the sentence is concerned, the only difference is that while in the case of the other two accused a life sentence was imposed, in the appellant’s case the trial Court observed that the life imprisonment awarded to the convict would mean life and no consideration would be allowed to the appellant. It is the say of the learned counsel for the appellant that the aforesaid part of the sentencing order was without jurisdiction by the trial Court in view of the judgment of this Court in “Union Of India vs. V. Sriharan @ Murugan & Ors. reported as (2016) 7 SCC 1.

4. On the appeals being filed before the High Court, all the appeals were dismissed as also the revision filed by the son of the victim on 10.1.2018.

5. On the issue of the special sentence imposed in the case of the appellant, the appeal was simply dismissed.

6. On the aforesaid happening, the appellant moved an application seeking to re-agitate the issue by pleading that at the stage of sentencing he appears to have heard that the sentence of the appellant would be modified to the same as in the case of the other two accused which had not been so recorded.

7. The High Court examined that aspect and by the speaking order dismissed the same on 24th August, 2018.

8. The present appeal seeks to assail both the aforesaid orders.

9. On the consideration of the special leave petition on 17th December, 2019 the notice was issued limited to the aspect of examination of the restriction of no remission and no parole insofar as the appellant was concerned.

10. We have heard learned counsel for parties on the aforesaid aspects.

11. We may record that even the learned counsel for the State clearly cannot dispute the legal proposition that such a power did not vest with the trial Court. In our view the effect of the same would be that the special sentence imposed would effectively be without jurisdiction and thus non est. It is in this context we record the submission of the learned counsel for the appellant that the appeal was filed by the appellant as accused and if the part of the sentence imposed by the trial Court is without jurisdiction, then only life sentence would operate as a consequence of the judgment of the trial Court and thus the High Court directing that part of the Order to operate on the trial Court in its own wisdom on examination would amount to enhancement of sentence on the appeal of the appellant.

12. With the aforesaid extent we would have been in agreement with the submission of the learned counsel for the appellant in normal circumstances but it has been pointed that a revision was also filed by son of the victim seeking enhancement which was dismissed by the High Court. We are recording the aforesaid submissions to make the legal principle clear on two aspects:

(1) On the appeal of the appellant, there would have been no occasion for enhancement of the sentence

(2) The imposition of the special sentence by the trial Court was without jurisdiction and thu