Thomas, J. - (1.) After concurring with the finding that first accused Subhash Singh Thakur, second accused Jayendra Thakur alias Bhai Thakur; third accused Shyam Kishore Garikapati and fourth accused Chandrakant Patil are guilty of the offence under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, for short 'the TADA', and confirming the conviction of that offence we felt that the sentence of rigorous imprisonment for 5 years awarded by the trial Court to each of them is inadequate. Hence we issued notice to them on the proposal to enhance the sentence. The said accused, in reply to the notice, filed detailed written submission. We heard the arguments addressed by the senior counsel on behalf of those accused and also Shri V. R. Reddy, Addl. Solicitor General who argued for the Central Bureau of Investigation.
(2.) We may state at the outset that we would not, at this stage, review the finding regarding the conviction of the offence under Section 5 of TADA for the obvious reason that we confirmed the finding after considering in detail the contentions raised by the accused and the elaborate arguments addressed by the learned counsel. Further, we have already dismissed the petitions filed for review of the findings arrived at by us adverse to those accused. Shri Ram Jethmalani, learned senior counsel made an endeavour to convince us that the accused have a right for re-canvassing the aforesaid finding on a parity of the principle envisaged in Section 377 (3) of the Code of Criminal Procedure, 1973 (which may be referred to hereinafter as 'the present Code'). According to the sub-section "when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
(3.) Under the Code of Criminal Procedure, 1898 (the old Code) High Court had the power to enhance a sentence even on an appeal filed by the accused against his conviction. Section 423 of the old Code, while circumscribing the powers of the appellate Court, made an addition through sub-section (1-A) like this: "(1-A) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith contained in clause (b) of sub-section (1)." As against the said provision, the corresponding section in the present Code contains restrictions imposed on the appellate Court for enhancing the sentence on an appeal filed from a conviction. The said restriction is incorporated in Section 386 (b) of the present Code that in an appeal from conviction, the appellate Court may reverse the finding and sentence and acquit or discharge the accused or alter the finding and maintain the sentence or with or without altering the finding alter the nature or the extent of the sentence "but not so as to enhance the same." While incorporating the said restriction the present Code conferred a new right on the State or Central Government by Section 377 to present an appeal through the Public Prosecutor on the ground of inadequacy of sentence. Such appellate powers of the High Court are subject to the rider that the accused should be given a reasonable opportunity of showing cause against such enhancement and while showing such cause the accused has the right to plead for acquittal or for reduction of sentence.;