Sentence Can Be Enhanced In Convict's Appeal Only By Giving Him Notice Of Enhancement: SC [Read Judgment]

Kumar Ghimirey was sentenced to 7 years imprisonment by the Trial Court finding him guilty of sexually assaulting a seven year old girl. The Sikkim High Court, in his appeal against conviction, enhanced it to ten years.

The accused, before the Apex Court, contended that that the procedure prescribed under Section 386 proviso of the Criminal Procedure Code has not been followed by the High Court since no notice for enhancement was issued to him. This contention was not refuted by the counsel who appeared for the State. In this regard, the bench said:

"There can be no doubt with regard to the power of the High Court to enhance the sentence in an appropriate case. The High Court can also exercise its power under Section 401 of Cr.P.C. in an appropriate case. Section 401 of Cr.P.C. provides for the power of revision to the High Court. The High Court under Section 401 of Cr.P.C. can exercise any of the powers conferred on a Court of Appeal by Sections 386, 390 and 391 or on a Court of Session by Section 307 of Cr.P.C. The High Court could have very well exercised power under Section 401 of Cr.P.C. read with Section 386(b) (iii), could have enhanced the sentence but the said course is permissible only after giving notice of enhancement."

It also referred to the judgment in Sahab Singh vs. State of Haryana , which had held that the High Court even if no appeal is filed by the State for enhancement of sentence can exercise suo motu power of revision under Section 397 read with Section 401 of Cr.P.C. but before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice.

The bench comprising of Justice Ashok Bhushan and Justice KM Joseph, however, rejected the contention of the accused that a minimum sentence of five years only should have been imposed on him. Affirming the Trial Court judgment, the bench said:

"The Special Judge has noted that the offence committed against the minor girl child (7 years) cannot be viewed lightly, we fully endorse the view of the learned Special Judge and considering the serious nature of the 17 offence the conviction of seven years RI need no interference in this appeal."

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