RANGTA MAJHI Vs. STATE OF ASSAM

JUDGEMENT

(1.) (Acting) - When should a High Court issue Rule for enhancement of sentence suo motu? is the question which needs our determination. This question has arisen because it has been noticed that the present appeal concerns a convict found guilty under section 3021PC for having caused most brutal and dastardly murder of five persons belonging to a family. The learned Sessions Judge having found the appellant guilty for annihilating the whole family of Rupsai, sentenced the appellant to imprisonment for life; of course, after applying his due mind to the question whether the convict deserved the extreme penalty of death as the punishment for the offence committed by him.

(2.) When the appeal came up before us for hearing on 18-3-88, we had posed a question as to whether Rule for enhancement of the evidence should be issued or not by this Court suo motu. We felt that before such a Rule is issued we should give due consideration to the question as to when this Court would be justified in issuing a Rule of enhancement in a case where the accused by virtue of the issuance of the Rule may become liable to be sentenced to death also. In view of the importance of the subject matter, we directed issuance of notice to the learned Advocate General to appear and assist the Court in deciding the aforesaid question. We thereafter heard the learned Advocate General as well as Mr. Singh who had been appointed as amicus curiae on behalf of the appellant as he had not been in a position to arrange for his own defence.

(3.) The learned Advocate General brought to our notice that section 439(1) of the Code of Criminal Procedure, 1898, hereinafter the old Code, had given a, specific power of enhancing the sentence in a case which had been called for by the High Court itself. This provisions was understood to give power to this Court to issue Rule suo motu for enhancement of sentence. Though such, a power has not been conferred by section 401 of the Code of Criminal Procedure, 1973, hereinafter the new Code, which section is parallel to section 439 of the old Code, it was submitted by the learned Advocate General that the power of issuing Rule for enhancement suo motu has not been done away with by the new Code inasmuch as under section 397 of the new Code this Court can examine the question of propriety of sentence also. Our attention was invited that this Court while examining a case it its revisional capacity can exercise power conferred, inter alto, by section 386 of the new Code, where under this Court while hearing an appeal for enhancement of sentence can with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same as provided in clause (c)(iii). It was submitted that the power conferred on Central Government or State Government by section 377 of the new Code to file appeal against sentence has not taken away the power of the High Court to issue a Rule suo motu for enhancement of sentence. 3A. In this connection we have noted two decisions of the Apex Court Nadir Khan v. State and Eknath v. State of Maharashtra. In para 4 of Nadir Khan it was observed by Goswami, J. as below: It is true, the new Code has expressly given a right to the State under section 377 Cr.P.C to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court TI It had been pointed out earlier in this para that power, which was regarded in the nature of remedial action on the part of the High Court should be exercised even though the State might be slow or silent in preferring an appeal provided for under the new Code.