Neglect Of State In Not Preferring Appeal Against Erroneous Sentence Doesn’t Preclude High Court From Exercising Its Powers Of Revision To Enhance It: Sikkim HC

The Sikkim High Court held that the neglect of the State in not preferring an appeal against the erroneous sentence does not preclude the High Court from exercising its powers of revision under Section 397 read with Section 401 of the Criminal Procedure Code (CrPC) to enhance it.

The Court held thus in a batch of appeals preferred by two men who were convicted under Sections 450, 376D, and 376(2)(l) read with Section 34 of the Indian Penal Code (IPC).

A Division Bench comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan observed, “It is relevant to remark that the neglect and laxity of the State-Respondent in not preferring an Appeal against the erroneous sentence does not preclude the High Court from exercising its powers of revision under Section 397 read with Section 401 of the Cr.P.C. to enhance the sentence. The convict is of course required to be put to notice and to be extended an opportunity of being heard on the question of sentence, either in person or through his Advocate.”

Senior Advocate S.S. Hamal represented the appellants while Additional Public Prosecutor S.K. Chettri represented the respondent.

Brief Facts -

In 2021, at around midnight, the appellants entered a house where the complainant’s mother and sister-in-law were only there in the house. They physically assaulted both women and sexually assaulted his mother. Hence, a case was registered under Sections 376D and 34 of IPC. The Trial Court framed individual charges against the appellants under Sections 376D, 376(2)(l) read with Section 34 of IPC and Section 450 read with Section 34 of IPC, to which they individually entered a plea of “not guilty” and claimed trial.

Eleven witnesses were examined by the prosecution and upon hearing the arguments and analysing the evidence on record, the Trial Court passed the judgment and order of sentence. The appellants were sentenced to undergo rigorous imprisonment of 12 years along with a fine of Rs. 10,000/-. Being aggrieved by this, they were before the High Court.

The High Court in view of the above facts noted, “Section 376D of the IPC inter alia provides that the convicts “................ shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life and with fine. .................” Thus, the sentence of twelve years meted out by the Learned Trial Court on A1 and A2, for the offence under Section 376D of the IPC is erroneous being alien to the legal provision and flies in the face of the mandate of law.”

The Court said that the following principles should be borne in mind while imposing sentences –

• That, a sentence is a Judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice-delivery system.

• That, imposition of appropriate punishment is the manner in which the Courts respond to the society’s cry for justice against the criminals.

• That, justice demands that Courts should impose punishment befitting the crime so that the Courts reflect the public abhorrence of the crime.

• That, it requires application of mind and the purpose of imposition of sentence must also be kept in mind.

“In State of Punjab vs. Prem Sagar and Others, the Supreme Court observed that there are certain offences which touch our social fabric, and we must remind ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain types of offences have been kept out of the purview thereof. While imposing sentences the said principles should be borne in mind”, it enunciated.

The Court further noted that as per Section 377 of CrPC, the State-Government can direct the Public Prosecutor to present an appeal to the High Court against the sentence on grounds of its inadequacy and hence, the State-Respondent in the matter has failed to exercise the prerogative granted by the legislature and to take advantage of the provisions of Section 377 of the CrPC.

“It is thus clear from the first proviso that the sentence shall not be enhanced unless the accused has had the opportunity of showing cause against such enhancement. The Appellate Court shall also not inflict greater punishment for the offence which in its opinion has been committed by the accused, than might have been inflicted for that offence by the Court passing the sentence”, it added.

Accordingly, the High Court partly allowed the appeal and issued notice to the convicts for hearing on enhancement of sentence.

Cause Title- Karan Chettri v. State of Sikkim

Appearance:

Appellants: Senior Advocate S.S. Hamal, Advocates Puja Lamichaney and Tashi Wongdi Bhutia.

Respondent: APP S.K. Chettri

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