B.S.YADAV, J. - (1.) THE opposite party, namely Surat Singh, Tara Chand, Mukhtiar Singh, Kartar Singh, Maha Singh and Ram Chander, were convicted under Sections 148, 323, 324 read with Section 149 of the Indian Penal Code, by the learned Judicial Magistrate Ist Class, Jhajjar and each was sentenced to various terms of imprisonment for each of the offences. The maximum sentence imposed was under Section 325 Indian Penal Code, and for that offence each of the accused was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/-. Feeling aggrieved against their conviction, the accused filed appeal in the Court of Shri S.B. Ahuja, Additional Sessions Judge, Rohtak.
(2.) SUNDER Lal one of the injured persons, filed two revision petitions in the said court. One was against the acquittal of the accused under Section 326 of the Indian Penal Code and the other was for enhancement of the sentence imposed by the learned trial Court. Before the learned Additional Sessions Judge, a question arose between the parties if the revision petition filed by Sunder Lal were maintainable in that Court. He has, therefore, formulated the following questions and has referred them to this court for directions :- (a) Whether court of Sessions possesses powers to enhance the sentence while hearing revision petition or such a power to enhance the sentence can only be exercised by the Hon'ble High Court ? (b) Whether the revision against the order of acquittal passed by the Magistrate can lie before the Sessions Court ? Presumably this reference has been made under Section 395(2) Cr. PC. For better appraisal of the arguments advanced by the learned counsel for the parties it is necessary to refer to the relevant provisions of the Code of Criminal Procedure :- "377(I) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. (2) ... ... ... ... (3) Where an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentences except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing case, the accused may plead for his acquittal or for the reduction of the sentence". "378(1) Save as otherwise provided in sub-section (2) and subject to the provision of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court or an order of acquittal passed by the Court of Sessions in revision. (2) If such on order of acquittal is passed in any case in which the offence has been investigated by the Delhi Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) ... ... ... ... (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty in every other case, computed days from the date of that order of acquittal. (6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under Section (2)". "386. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may :- (a) in an appeal from an order of acquittal reverse such order and direct that further inquiry by made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in a appeal from a conviction :- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in a appeal for enhancement of sentence :- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be retired by a Court competent to try the offences or (ii) after the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, or the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper : Provided that the sentence shall not be enhanced unless the accused had an opportunity of showing cause against such enhancement : Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed than might have been inflicted for that offence by the Court passing the order or sentence under appeal".
(3.) SECTION 397 of the Code of Criminal Procedure deals with the calling for records by the High Court and the Session Judge for exercising the powers of revision. It reads as follows :- "397. (1) The High Court or any Sessions Judge may call for an examine the record of any proceeding before and inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be suspend, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation :- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. (3) If an application under this section has been made by any persons either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them". Section 399 of the Code deals with the Sessions Judge's power of revision and it reads as follows :- "399 - (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. (2) Where any proceeding by way of revision is commenced before a Sessions judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-section to High Court shall be construed as reference to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other court". Section 401 lays down the High Court's powers of revision and it reads as follows :- "401. - (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. (2) No order under this Section shall 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. (3) Nothing in this Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly". The question posed by the learned Additional Session Judge will have to be decided in the light of the above provisions.;