The appellate court cannot enhance a sentence based solely on a complainant's appeal, as per the Cr.P.C. provisions.

ORDER

1. A glaring defect of law is noticed in this case. Vide judgment dated 27.02.2012 passed by ACJM Nagaur in Criminal Regular Case No.205/2006 (04/2004), the appellant Shagun Singh and Prem Singh were convicted for committing offence under Section 420 and 120 (B) of IPC and they were directed to serve two years simple imprisonment with fine.

2. Aggrieved by the judgment of conviction and order of sentence dated 27.02.2012, the appellants preferred an appeal before the learned Additional Sessions Judge No.2, Nagaur bearing Criminal Appeal No.15/2012 (244/2015). Assailing the same judgment, an appeal on behalf of the complainant has also been preferred. The case was instituted upon a complainant and as such it was a warrant case instituted upon a complaint

3. To the utter dismay, learned appellate Court while dismissing the appeal has enhanced the sentence from two years to three years while taking into account the fact that the complainant Sukharam has also preferred an appeal for enhancement of the sentence and the appeal of the appellant's got dismissed. It is trite law that while exercising the power under Section 386 of Cr.P.C. the appellate Court cannot enhance the sentence against the judgment of conviction. Again an appeal under Section 377 of Cr.P.C. can only be moved at the behest of the State and the complainant is not entitled to move an appeal for enhancement of the sentence. As per proviso contained in Section 372 of the Cr.P.C. an aggrieved party can prefer appeal only under three contingencies, first; against judgment of acquittal, second against the conviction for a lesser offence and thirdly when it is felt that the compensation awarded to the convict was not adequate. None of the contingencies appearing in this case. Section 378 Subclause 4 of the Cr.P.C. stipulates an appeal by the complainant against the judgment of acquittal only and as such, it seems that the learned appellate Court has committed a grave error of law in passing the impugned judgment dated 20.02.2023. Thus, in the given circumstance, the order of sentence passed by the learned ACJM, Nagaur as well as passed by the learned Additional Sessions Judge No.2, Nagaur deserve to be suspended suspended till disposal of the revision petition.

4. Accordingly, the application for suspension of sentence filed under Section 397(1) Cr.P.C. is allowed and it is ordered that the sentences passed by the learned Additional Sessions Judge No.2, Nagaur vide order dated 20.02.2023 in Cr. Appeal No.15/2012 so also the order dated 27.02.2012 passed by the learned ACJM Nagaur in Criminal Regular Case No.205/2006 (04/2004) against the petitioner-applicant Prem Singh S/o Heera Ram shall remain suspended till final disposal of the aforesaid revision and he shall be released on bail, provided he executes a personal bond in the sum of Rs.10,000/- with one surety of Rs.10,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 05.04.2023 and whenever ordered to do so, till the disposal of the revision on the conditions indicated below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the revision is decided.

2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

5. The learned trial Court shall keep the record of attendance of the accused-applicant(s) in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant(s) was/were tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accus