Summary
In an appeal filed only by the convict against his conviction and sentence, the High Court cannot, while affirming the conviction, enhance the sentence, whether by invoking Section 386(b) CrPC or by exercising suo motu revisional power under Section 401, and cannot remit the case to the trial court for enhancement, when no appeal or revision for enhancement has been filed by the State, the complainant or the victim. Applying the principle that no appellant may be left worse off by his own appeal (no reformatio in peius), the Supreme Court set aside the High Court's orders that led to a POCSO convict's seven-year sentence being enhanced to life imprisonment and, under Article 142, ordered his release since he had already served over eleven years.
Issues
- Whether, in an appeal filed by the accused against conviction and sentence, the High Court can, while maintaining the conviction, enhance the sentence or remand the matter to the trial court for enhancement, in the absence of any appeal or revision by the State, complainant or victim.
- Whether the High Court's suo motu revisional jurisdiction under Sections 397 and 401 CrPC to enhance a sentence can be exercised while hearing the convict's own appeal.
- Whether the High Court could convict the appellant of the graver offences under Sections 5(m) and 6 of the POCSO Act and Section 376(2)(i) IPC, for which no charge had been framed, and whether the appellant was given an effective hearing before the sentence was enhanced.
- What relief is appropriate where the appellant has already undergone imprisonment far exceeding the sentence originally imposed.
Provisions considered
- Section 386, Code of Criminal Procedure, 1973Section 386(b)(iii) permits the appellate court in an appeal from conviction to alter the nature or extent of the sentence 'but not so as to enhance the same'; enhancement is available only under clause (c) in an appeal for enhancement, subject to the provisos that the accused is heard and that no greater punishment is inflicted than the trial court could have imposed. The Court held that in a convict's appeal the appellate court can acquit, order retrial, or maintain or reduce the sentence, but not enhance it; the power to enhance arises only in an appeal by the State, victim or complainant. (¶¶ 19, 21, 23, 27, 29.2, 31, 32)
- Section 401 (with Section 397), Code of Criminal Procedure, 1973Section 401 lets the High Court in revision exercise the powers of an appellate court under Section 386, but not to the prejudice of the accused without hearing him, nor to convert an acquittal into a conviction, and not at the instance of a party who could have appealed but did not (sub-section (4)). Nadir Khan and Eknath Shankarrao Mukkawar establish that the High Court may suo motu enhance a sentence in revision even without a State appeal. The Court held, however, that this suo motu revisional power cannot be exercised while the High Court is seated in appellate jurisdiction in an appeal filed by the convict alone, even if he is given an opportunity of hearing. (¶¶ 20.1, 20.1.1, 20.2, 27, 27.1, 27.2, 29, 29.1)
- Section 377, Code of Criminal Procedure, 1973Section 377 gives the State a right of appeal against inadequacy of sentence, introduced on the 41st Law Commission's recommendation. The State filed no such appeal here, nor did the complainant or victim appeal under Section 378 or the proviso to Section 372, so no proceeding seeking enhancement was before the High Court. (¶¶ 6, 20, 21, 27)
- Sections 3(a), 4, 5(m) and 6, Protection of Children from Sexual Offences Act, 2012The Special Court convicted the appellant under Sections 3(a) and 4 (penetrative sexual assault, then punishable with a minimum of seven years) though the victim was four years old, which would have attracted Section 5(m) read with Section 6 (aggravated penetrative sexual assault, then a minimum of ten years). The High Court, in the convict's appeal, recorded a conviction under Sections 5(m) and 6 without any charge having been framed and remitted for enhanced sentencing; the Court held this course impermissible and restored the original conviction and seven-year sentence. (¶¶ 3, 5, 8, 9, 10, 34, 34.1, 34.2, 36, 37)
- Section 376(2)(i), Indian Penal Code, 1860The High Court also held the appellant liable under Section 376(2)(i) IPC (rape of a woman under the specified age, then carrying a minimum of ten years) and the Special Court on remand convicted him under it without separate sentence. The Court set aside these orders along with the enhancement. (¶¶ 10, 34.1, 34.3, 34.4, 35)
- Article 142 (with Articles 14 and 21), Constitution of IndiaDrawing on A.R. Antulay, the Court observed that leaving a convict worse off in his own appeal offends Articles 14 and 21. Rather than remand the appeal to the High Court, it exercised Article 142 to restore the original seven-year sentence and, as the appellant had served eleven years and eight months, ordered his immediate release. (¶¶ 25, 30, 37, 39)
Held
- In an appeal filed by the accused against conviction and sentence, the appellate court cannot, while maintaining the conviction, enhance the sentence. The High Court, while exercising appellate jurisdiction at the instance of the convict, cannot act as a revisional court, particularly when no appeal or revision for enhancement has been filed by the State, victim or complainant. The expression 'but not so as to enhance the same' in Section 386(b)(iii) reflects the spirit of the scheme. (¶¶ 23, 27, 29.1, 29.2)
- Although Nadir Khan and Eknath Shankarrao Mukkawar settle that the High Court's suo motu revisional power under Sections 397 and 401 to enhance a sentence survives the enactment of Section 377, that power cannot be exercised within an appeal filed only by the convict, even if he is given an opportunity of hearing. Section 401(3), which forbids converting an acquittal into a conviction in revision, is extended by analogy to bar enhancement in the convict's appeal; nor can the High Court in such an appeal remand the case to the trial court for enhancement. Sahab Singh and Govind Ramji Jadhav are to be read in light of their facts and of Nadir Khan and Eknath. (¶¶ 20.1.1, 20.2, 22.1, 22.2, 27.1, 27.2, 29, 29.1, 34.4)
- The right of appeal of an accused is a valuable statutory and constitutional right; an appellant cannot be placed in a worse position as a result of filing his appeal (the principle of no reformatio in peius, which is part of fair procedure and natural justice). Otherwise a convict would be better off not appealing at all. Even in an appeal for enhancement, the sentence cannot be enhanced unless the accused is heard and the appellate court inflicts no greater punishment than the trial court could have. (¶¶ 24, 25, 26, 30, 31, 32, 33)
- On the facts, the record did not show that the appellant or his counsel was actually heard on the question of modifying the charge from the minor to the major offence and enhancing the sentence; the High Court recorded a conviction under Sections 5(m) and 6 POCSO Act and Section 376(2)(i) IPC though no charges under those provisions had been framed, and remitted the matter for enhanced sentencing, leading to life imprisonment in place of seven years. The Single Judge's remand and the Special Court's enhancement were both erroneous. (¶¶ 17, 18, 34.1, 34.2, 34.3, 34.6)
- Trial courts must ensure that the sentence imposed is concomitant with the charges framed and the findings recorded, and appropriate to the nature of the charges proved. (¶ 29.3)
Result
Appeals allowed and disposed of. The High Court's judgment dated 26.02.2016 and orders dated 02.03.2016 and 08.03.2016 in Criminal Appeal No. 30 of 2015, and the Special Court's order dated 28.04.2016 sentencing the appellant to life imprisonment with fine of Rs. 5,000, set aside; the original conviction and seven-year sentence restored under Article 142. As the appellant has served eleven years and eight months, the State and the Superintendent, Nagpur Central Jail, directed to release him forthwith; Criminal Appeal No. 30 of 2015 before the High Court rendered infructuous and disposed of.