MOHAMMAD SABIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A subtle point arises for determination in this case and that is as regards the meaning of the expression "enhancement of the sentence". The petitioner Mahomed Shabir was proceeded against Under Section 279 of the I. P. C. The Judicial Magistrate, First Class, 8th Court, Nagpur, found him guilty and sentenced him to pay a fine of Rs. 100 or in default to undergo simple imprisonment for 15 days. In the application for revision presented to the Sessions Judge, Nagpur, following order is passed: The petition is dismissed, A copy of this judgment be sent to the R. T. O. Nagpur for cancellation of the driving licence of the accused for a period of six months. The present application is given Under Section 482 of the Cr. PC 1973 for deleting the order directing the sending of judgment to the R. T. O. Nagpur. It is contended that since the trial Court had not passed such an order, it was not open to the Sessions Judge in revision to add to the order as it amounts to enhancing the sentence of which no notice was served on the petitioner.

(2.) INCIDENTALLY it may be noted that this revision application was disposed of on 5-1-1976 when there was no appearance on behalf of the petitioner when the matter was called out. In a subsequent application for restoration my col- league Justice Gandhi has restored the original application. Fresh judgment will have, therefore, to follow on hearing both the parties,

(3.) THE learned Sessions Judge to whom the revision petition was presented was exercising his powers Under Section 399 of the Cr. PC 1973. He could, therefore, exercise the powers detailed in Section 401 of the Code. That section in turn refers to the exercising the powers conferred Under Sections 386, 389, 390 and 301. Section 386 is the relevant section which lays down that the Court if it considers that there is no sufficient ground for interfering, may dismiss the appeal. Alternatively as provided for in Clause (b), sub-cls. (i), (ii) and (iii) it was open to the Sessions Judge to reverse the finding and sentence and to acquit or discharge the accused or to order retrial or to maintain the sentence or with or without altering the finding alter the nature and extent of the sentence. Sub-cl. (iii) of Clause (b) however provides that such alteration ought not to amount to enhancement of the sentence. Clause (d) of Section 386 also empowers the Court to alter or reverse the order and Clause (e) allows making amendment or any consequential or incidental order that may be just or proper. However, there is a proviso to Clause (e) that sentence shall not be enhanced unless the accused had an opportunity of showing cause against such enhancement.