Ex-Parte Enhancement Of Sentence Illegal; HC Must Appoint Amicus Curiae If Accused Is Not Represented : Supreme Court

The Supreme Court of India has held that ex parte enhancement of sentence by the High Court is against the statutory mandate of the law under CrPC that provides for an opportunity to show case before enhancement of sentence in criminal revision.

A Bench compromising Justice Sanjiv Khanna and Justice Bela Trivedi set aside Madras High Court's order that enhanced the sentences imposed on the appellants without any legal representation on his behalf and without appointing an Amicus Curiae in the case

"It appears the ex parte enhancement of sentence is against the statutory mandate of the law as delineated in the conjoint reading of Section 401(1) and first proviso to Section 386 of the Code of Criminal Procedure, 1973. These sections adumbrate an opportunity of showing cause before enhancement of sentence in criminal revision", the Bench said.

It may be noted that Section 401 of CrPC which provides for High Court's power of revision states that no order under the section can be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

The Proviso to Section 386 which deals with Powers of appellate court states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement.

In the present matter, where only the petitioner and State were heard and the Court did not have the benefit of the arguments on behalf of the appellant accused, the Bench observed that the High Court was wrong in not appointing an Amicus Curiae.

The Bench observed that in case of no legal representation on behalf of the accused the High court ought to have appointed an Amicus Curiae in the absence of counsel as observed by the Supreme Court in the case of Parveen v. State of Haryana.

Referring to its judgement in the case of Govind Ramji Jadhav v. State of Maharashtra which mandates that the High Court should give the accused a reasonable opportunity of showing cause, the Bench set aside High Court's order dated 24.10.2018 and remanded the matter back to the High Court to decide the revision petition afresh.

With regard to High Court's observation that notice had been served to appellants, the Bench observed that there is lack of clarity on when the notice was actually served and whether the appellants were informed that the criminal revision will be taken up for final hearing.

The present special leave petition was filed challenging the Madras High Court's order in a criminal revision enhancing the sentences imposed on the appellants for offences under Sections 341, 294(b), 506(ii) and 447 of the Indian Penal Code.

The impugned order was passed in a criminal revision petition by the victim against the judgment and order of sentence passed by the Court of Principal Sessions Judge, Vellore District dated 4th December 2006.

When the revision petition came up for hearing after almost five years on 24th October 2018, the impugned order was passed mentioning that the notice had been served to the appellants and their names had been printed in the cause list but there was no representation on their behalf.

Case Title: Krishnan & Anr vs State By Deputy Superintendent Of Police & Anr

Citation : LL 2021 SC 707

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