An accused must be granted an opportunity to show cause against a proposed sentence enhancement as mandated under Section 377(3) Cr.P.C, failing which the enhancement is legally unsustainable.

ORDER :

M.B. SNEHALATHA, J.

In this revision petition, accused challenges the judgment of the Sessions Court, Thalassery in Crl.A No.411/2009 whereby the Sessions Court enhanced the punishment imposed against him in C.C.No.308/2005 by the Judicial First Class Magistrate Court, Kuthuparamba.

2. Crl.A No.411/2009 was an appeal preferred by the State before the Sessions Court, Thalassery under Section 377 of the Code of Criminal Procedure, 1973 (for short ' Cr.P.C ') seeking enhancement of the sentence awarded by the Judicial First Class Magistrate Court, Kuthuparamba against the accused for the offences punishable under Sections 279 , 338 and 304A of INDIAN PENAL CODE (for short ' IPC ').

3. The allegation against the accused was that on 29.5.2005 at 21 hrs. accused drove an autorickshaw bearing registration No.KL13/D 8621 through the Public Road in a rash and negligent manner so as to endanger the human life and when it reached at Chittariparamba, it collided with a motor cycle bearing registration No.KA01/R-4013 ridden by the defacto complainant with one Zubair as pillion rider. The rider of the motor cycle and the pillion rider sustained injuries in the said incident. The pillion rider Zubair succumbed to the injuries. It was also alleged that accused had no driving licence for driving the autorickshaw, the accused thereby committed the offences punishable under Section 279 , 338, 304A of IPC and Section 3 r/w Section 181 of MOTOR VEHICLES ACT .

4. It is an admitted case that initially when the learned Magistrate read over and explained the charge against the accused, he pleaded not guilty to the charges and accordingly prosecution examined certain witnesses. It is also an admitted fact that while the trial was thus proceeding, accused filed Crl.M.P.No.789/2009 before the trial court namely Judicial First Class Magistrate Court, Kuthuparamba for permitting him to plead guilty to the charges levelled against him and the learned Magistrate allowed Crl.M.P No.789/2009. Accordingly the revision petitioner/accused pleaded guilty to the charges. Accepting the plea of guilty made by the accused, the learned Magistrate found the accused guilty and convicted him for the offences under Sections 279 , 338 and 304A IPC and sentenced him to pay a fine of Rs.1,000/- each for the offences punishable under Sections 279 and 338 IPC. He was sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.5,000/- for the offence under Section 304A IPC. Sentence in default of payment of fine was also ordered by the learned Magistrate.

5. Aggrieved by the inadequacy of the sentence, the State of Kerala preferred appeal as Crl.A No.411/2009 before the Sessions Court, Thalassery. In appeal, the appellate court enhanced the sentence for the offence under Section 304A of IPC. The sentence of imprisonment till the rising of the court and fine of Rs.5,000/- for the offence under Section 304A IPC was enhanced to simple imprisonment for one year and fine of Rs.5,000/-. The sentence of fine imposed by the trial court for the offence under Sections 279 and 338 IPC and the sentence in default of payment of fine ordered by the learned Magistrate remains unaltered in appeal.

6. Aggrieved by the judgment of the appellate court, enhancing the sentence, accused has preferred this revision petition, mainly contending that before enhancing the sentence against him for the offence under Section 3 04A IPC, he was not heard by the appellate court as mandated under Section 3 77 (3) Cr.P.C. The learned counsel for the revision petitioner/accused contended that in view of Section 3 77 (3) Cr.P.C, it was mandatory for the appellate court to grant an oppo