- (1.) OPPOSITE Parties Dori, Deep Chand and Lohrey were convicted under Section 323/34, Indian Penal Code and sentenced to a fine of Rupees 100/- each by the Additional Munsif Magistrate, Mathura on 27-61978. Complainant Chandra Pal filed a revision before the Sessions Judge, Mathura under Section 397, Criminal P. C. praying that the sentence of fine imposed upon the opposite parties be enhanced. The Sessions Judge being in doubt whether the Court of Session has the power to enhance the sentence while hearing revision petitions had made a reference to this Court under Section 395 (3), Criminal P. C. seeking its directions.
(2.) I have heard counsel for the State and have also perused the referring order. I have also perused the various provisions of the Cr. P. C. and a decision of the Gujarat High Court reported in 1977 Cri LJ 1666 Prabhudas Chhanganlal v. Babubhai Virabhai Miseria.
(3.) IN the aforesaid decision of the Gujarat High Court the view taken was that the Sessions Judge has powers to enhance the sentence while exercising revisional jurisdiction. This decision is based mainly on the ground that under Section 402, Criminal P. C. 1973 (Act 2 of 1974) the powers of the High Court are the same as those of a Court of Appeal conferred by Sections 386, 389, 390 and 391 or on a court of session under Section 307, Criminal P. C. and since the powers of the Court of Session are identical to the powers of the High Court under Section 388, Criminal P. C. and since the High Courts have powers to enhance the sentence under Section 376 read with Section 377, Criminal P. C; the Sessions Judge would also be deemed to have been invested with similar powers. 3-A. This view of the law does not appear to be correct. In the old Code of Criminal Procedure, Section 439 (1) is equivalent to Section 401 of the new Criminal P. C. In the old Code the power of enhancement of sentence was specially conferred on the High Court in revision. This word is conspicuously absent in Section 401 of the new Code. It will be pertinent at this stage to quote the relevant provisions of both the Codes of Criminal Procedure: (Relevant provisions are given below) Section 439 (1) of oldcr. P. C. Section 401 (1) of newcr. P. C. In the case of any proceeding the recordof which has been called In the case of anyproceeding the recordof which has been for by itself or which hasbeen reported for orders, orwhich otherwise comes to its knowledge, the High Court may, in its discretion, exercise anyof the powers conferred on a called for by itselfor which otherwise comes to its knowledge, thehigh Court may, inits discretion exercise any of the powers conferred court of Appeal by Sections 423, 426, on a court of Appeal by 427 and 428 or on a Court by Sections 386, 389, 390 andsection 338 and may enhance 391 or on a Court of the sentence. . . . Session by Section 307 and. . . ;