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1988 Supreme(Gau) 61
GAUHATI HIGH COURT
B.L.Hansaria, J.Sangma, JJ.
Rangta Majhi -Appellant
Versus
State of Assam -Respondent
Criminal Appeal No. 88 (J) of 1987
Decided On : 25-04-1988
P.K.Goswami, K.Deka, J.Singh, H.A.Sarkar
Headnote:
Enhancement of Sentence - High Court - Code of Criminal Procedure, 1898, section 439(1); Code of Criminal Procedure, 1973, section 397, section 386, section 377, section 354(3), section 401(4) - The court discussed the power of the High Court to issue Rule for enhancement of sentence suo moto under the new Code of Criminal Procedure, 1973, and the circumstances under which this power should be exercised. The court emphasized the need for extreme caution in issuing a Rule of enhancement in cases where the convict may be liable to be punished with death, and outlined the factors that should be considered before issuing such a Rule.
Fact of the Case:
The case concerned a convict found guilty under section 302 IPC for the brutal murder of five persons belonging to a family. The learned Sessions Judge sentenced the appellant to imprisonment for life, prompting the High Court to consider the question of issuing a Rule for enhancement of the sentence suo moto.
Finding of the Court:
The court found that the power of issuing Rule for enhancement suo moto exists under the new Code, but emphasized that it should be exercised sparingly and with great restraint. The court outlined the circumstances under which the power should be exercised, including the need for prima facie satisfaction that the case demands enhancement of sentence and the consideration of reasons given by the trial Court for the imposed sentence.
Issues: The main issue was when the High Court should be justified in issuing a Rule of enhancement in a case where the accused may become liable to be sentenced to death. The court also considered the relevance of non-preferring of appeal by the Central or State Government against the sentence awarded.
Ratio Decidendi: The court held that extreme caution must be exercised in issuing a Rule of enhancement in cases which make the convict liable to be punished with death. The court outlined the factors that should be considered before issuing such a Rule, including the manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of the crime, and personality of the victim of murder.
Final Decision: The court ordered for the issuance of a Rule of enhancement of sentence, making it returnable within 3 weeks, and allowed the appellant's counsel to receive instructions from the appellant. The case would be placed for hearing before a Bench without the current judges, keeping in view the need for justice to not only be done but also seem to have been done.
When should a High Court issue Rule for enhancement of sentence suo moto is the question which needs our determination. This question has arisen because it has been noticed that the present appeal concerns a convict found guilty under section 302 IPC for having caused “most brutal and dastardly” murder of five persons belonging to a family. The learned Sessions Judge having found the appellant guilty for annihilating the whole family of Rupsai, sentenced the appellant to imprisonment for life; of course, after applying his due mind to the question whether the convict deserved the extreme penalty of death as the punishment for the offence committed by him.
2. When the appeal came up before us for hearing on 18.3.88, we had posed a question as to whether Role for enhancement of the sentence should be issued or not by this Court suo moto. We felt that before such a Rule is issued we should give due consideration to the question as to when this Court would be justified in issuing a Rule of enhancement in a case where the accused by virtue of the issuance of the Rule may become liable to be sentenced to death also. In view of the importance of the subject matter, we directed issuance of notice to the learned Advocate General to Appear and assist the Court in deciding the aforesaid question. We thereafter heard the learned Advocate General as well as Mr. Singh who had been appointed as amicus curiae on behalf of the appellant as he had not been in 8 position to arrange for his own defence.
3. The learned Advocate General brought to our notice that section 439(1) of the Code of Criminal Procedure, 1898, hereinafter 'the old Code', had given a specific power of enhancing the sentence in a case which had been called for by the High Court itself. This provision was understood to give power to this Court to issue Rule suo moto for enhancement of sentence. Though such a power has not been conferred by section 401 of the code of Criminal Procedure, 1973 hereinafter' the new Code', which section is parallel to section 439 of the old Code, it was submitted by the learned Advocate General that the power, of issuing Rule for enhancement -suo moto has not been done away with by the new Code in as much as under section 397 of the new Code this Court can examine the question of propriety of sentence also. Our attention was invited that this Court while examining a case in its revisions! capacity can exercise power conferred, inter alia, by section 386 of the new Code, whereunder this Court while hearing an appeal for enhancement of sentence can with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same as provided in clause (c) (iii). It was submitted that the power conferred on Central Government or State Government by section 377 of the new Code to file appeal against sentence has not taken away the power of the High Court to issue a Rule suo moto for enhancement of sentence.
In this connection we have noted two decisions of the Apex Court: (1) Nadir Khan vs. State, AIR 1976 SC 2205; and (2) Eknath vs. State of Maharashtra, AIR 1977 SC 1177. In para 4 of Nadir Khan it was observed by Goswami J. as below ;
“...... It is true, the new Code has expressly given a right to the State under section 377, Cr. P. C. to appeal against inadequacy or sentence which was not there under the old Code. That however does not exclude re visional jurisdiction of the High Court to act suo moto for enhancement of sentence in appropriate, cases. What is an appropriate case has to be left to the discretion of the High Court .”
It had been poioed out earlier in this para that this power which was regarded in the nature of “remedial action” on the part of the High Court should be exercised even though the State might be slow or silent in preferring a'n appeal provided forunder new Code.
, ,4. In para 6 of Eknath, the Court speeking through Goswami, J state:
“We s
