BHARATKUMAR RAMESHCHANDRA BAROT versus STATE OF GUJARAT on 26 March 2018

[2018] 3 S.C.R. 689

BHARATKUMAR RAMESHCHANDRA BAROT

v.

STATE OF GUJARAT

(Criminal Appeal No. 448 of 2018)

MARCH 26, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Code of Criminal Procedure, 1973: s.377 – Session Courtawarded to the appellant 10 years rigorous imprisonment for offenceunder s.302 IPC – On State’s appeal under s.377, High Courtenhanced the sentence from 10 years to life imprisonment – Onappeal, held: Once the Sessions Judge found the appellant guiltyfor commission of the offence of the murder punishable under s.302IPC, the only punishment that can be awarded in law is either the“death penalty” or “imprisonment for life” and the “fine” – s.302IPC, in clear terms, provides that “whoever commits murder shallbe punished with “death” or “imprisonment for life” and shall alsobe liable to “fine” – Any punishment less than the life imprisonment,as prescribed under s.302 IPC, if awarded by any Court is per seillegal and without authority of law – Indeed, there is no suchdiscretion left with the Court in awarding the punishment except toaward the punishment which is prescribed under s.302 IPC – PenalCode, 1860 – s.302 – Sentence/Sentencing.

Code of Criminal Procedure, 1973: s.377 – Object of – Held:The object of s.377 is that when the State files an appeal seekingenhancement of jail sentence awarded by the Sessions Judge, thejail sentence cannot be enhanced unless the accused is given anopportunity to defend it – The accused is also entitled to pray forhis acquittal or award of lesser punishment – If the accused, afterservice of notice fails to raise this plea then the High Court wouldbe justified in deciding the State’s appeal on merits which is confinedto only for enhancement of jail sentence – Therefore, the accusedcannot later claim remand the case for rehearing of the appeal.

Code of Criminal Procedure, 1973: s.377(3) – Requirementunder, non-compliance – Plea by appellant that he was deprived ofhis right to oppose the appeal and also his right to urge the grounds

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Afor his acquittal as provided in s.377(3) of the Code; that appellantwas not afforded adequate opportunity to defend himself in theappeal filed by the State for enhancement of jail sentence; thatsufficient time was not given to amicus curiae to prepare the casewhich caused prejudice to the appellant – Held: Plea is notsustainable – Notice of appeal was duly served on the appellant –BIt was not the case of the appellant that he had no knowledge offiling of the appeal by the State against him or there was any infirmityin effecting service of notice of appeal which rendered theproceedings in appeal as bad in law – Despite notice having beenserved personally on the appellant, he did not appear – Though,Cthe appellant had an independent right of appeal but he did not fileany regular appeal questioning the legality of the order of theSessions Judge convicting him for commission of the offence ofmurder – High Court, having found that there was no representationon behalf of the appellant despite personal service effected on him, was justified in appointing a lawyer as amicus curiae to safeguardDthe appellant’s interest and to assist the Court as well – The amicuscuriae had never made any complaint in the High Court for notgiving him more time for preparation of the case – High Court,therefore, ensured compliance with s.377(3).

Dismissing the appeal, the CourtE

Conclusion

HELD: 1. There was due compliance with the requirementsof Section 377(3) of the Code by the High Court and, therefore,no fault could be noticed in the reasoning and conclusion arrivedat by the High Court so far as the compliance of Section 377(3) ofthe Code is concerned. The object of Section 377 of the Code isFthat when the State files an appeal seeking enhancement of jailsentence awarded by the Sessions Judge, the jail sentence cannotbe enhanced unless the accused is given an opportunity to defendit. The accused is also entitled to pray for his acquittal or awardof lesser punishment. If the accused, after service of notice failsGto raise this plea then the High Court would be justified in decidingthe State’s appeal on merits which is confined to only forenhancement of jail sentence. Therefore, there is no ground toremand the case for rehearing of the appeal. [Paras 17, 23][693-F ; 694-E]

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2. Once the Sessions Judge found the appellant guilty forcommission of the offence of the murder punishable under Section302 IPC, the only punishment that can be awarded in law is eitherthe “death penalty” or “imprisonment for life” and the “fine”.Any punishment less than the life imprisonment, as prescribedunder Section 302 IPC, if awarded by any Court is per se illegaland without authority of law. [Paras 25, 27] [694-H; 695-B]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 448 of 2018.

From the Judgment and Order dated 08.10.2015 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal (For Enhancement) No.1303 of 2014.

Abhishek Singh, Samir Ali Khan, Advs. for the Appellant.

Ms. Mamta Singh, Ms. Jesal Wahi, Ms. Hemantika Wahi,Ms.Vishakha, Advs. for the Respondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed by the accused against the final judgmentand order dated 08.10.2015 passed by the High Court of Gujarat atAhmedabad in Criminal Appeal (for Enhancement) No.1303 of 2014whereby the High Court allowed the appeal filed by the State of Gujaratunder Section 377 of the Code of Criminal Procedure, 1973 (hereinafterreferred to as “the Code”) and enhanced the sentence imposed on theappellant (accused) by the Trial Court from 10 years rigorousimprisonment to imprisonment for life.

3. Facts of the case lie in a narrow compass so also the issueinvolved in the appeal is short as would be clear from the facts statedhereinbelow.

4. The appellant was prosecuted and eventually convicted for theoffences punishable under Section 302 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”) and Section 135 of the Bombay PoliceAct(hereinafter referred to as “the B.P. Act”) by order dated 04.09.2014passed by the 3rd Additional Sessions Judge, Mehsana (Gujarat) inSessions Case No.71/2012 for committing murder of the deceased byname - Dilipbhai Ratnaji.

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A5. The Sessions Judge, however, awarded to the appellant 10years’ rigorous imprisonment and fine of Rs.5000/- and, in default ofpayment of fine, to further undergo 5 months’ simple imprisonment sofar as offence under Section 302 IPC was concerned and so far as forthe offence punishable under Section 135 of the B.P. Act was concerned,the appellant was awarded 3 months’ simple imprisonment and fine ofBRs.500/- and, in default of payment of fine, to further undergo 15 days’simple imprisonment.

6. The State felt aggrieved by the award of the lesser punishmentof 10 years under Section 302 IPC to the appellant as against what isspecified under Section 302 IPC and filed criminal appeal under SectionC377 of the Code, out of which this appeal arises, praying therein for itsenhancement and make it in conformity with the punishment specifiedunder Section 302 IPC.

7. The appellant was served with the notice (dasti) of the appealfiled by the State. The appellant (accused), however, did not appearDdespite service of dasti notice made on him and nor filed any criminalappeal challenging his conviction on merits. The High Court, therefore,appointed Mr. U. Oza, advocate, as amicus curiae to assist the Courton behalf of the accused (appellant herein) for defending him.

8. By impugned judgment, the High Court allowed the State’sEappeal and enhanced the sentence from “10 years” to “life imprisonment”for the offence of murder under Section 302 IPC. In other words, theHigh Court enhanced the sentence and awarded sentence of “lifeimprisonment” to the appellant as provided under Section 302 IPC. Sofar as the imposition of fine was concerned, it was upheld.F9. It is against this judgment of the High Court, the appellant(accused) has felt aggrieved and filed this appeal by way of specialleave in this Court.

10. Heard Mr. Abhishek Singh, learned counsel for the appellant(accused) and Ms. Mamta Singh, learned counsel for the respondent-GState.

11. Mr. Abhishek Singh, learned counsel appearing for the appellant(accused) while assailing the legality and correctness of the impugnedjudgment argued essentially on one point.

12. Referring to Section 377(3) of the Code, learned counsel urgedthat the appellant (accused) was not afforded adequate opportunity todefend himself in the appeal filed by the State for enhancement of thejail sentence and hence the impugned judgment is rendered bad in lawhaving been passed without following the procedure provided under sub-section (3) of Section 377 of the Code.

13. In other words, his submission was that the appellant wasdeprived of his right to oppose the appeal and also his right to urge thegrounds for his acquittal as provided under Section 377(3) of the Code.Learned counsel urged that it is for this reason, the enhancement of jailsentence made by the High Court is rendered illegal and withoutjurisdiction.

14. Learned counsel also urged that sufficient time was not givento the learned amicus curiae to prepare the case. It was urged that thisalso caused prejudice to the appellant.

15. In reply, learned counsel for the respondent (State) supportedthe reasoning and conclusion of the High Court and contended that theappeal has no merit.

16. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to dismiss the appeal as, in ouropinion, it has no merit.

17. Coming first to the submission as to whether there was anynon-compliance with the requirements of Section 377(3) of the Code bythe High Court, in our considered opinion, there was due compliancewith the requirements of Section 377(3) of the Code by the High Courtand, therefore, no fault could be noticed in the reasoning and conclusionarrived at by the High Court so far as the compliance of Section 377(3)of the Code is concerned. This we say for the following reasons.

18. In the first place, the High Court served dasti notice to theappellant (who was respondent before the High Court). The notice ofthe appeal was, therefore, duly served on the appellant. In other words,it was also not the case of the appellant that he was not served or had noknowledge of filing of the appeal by the State against him or there wasany infirmity in effecting service of notice of appeal which rendered theproceedings in appeal as bad in law.

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19. Second, despite notice having been served personally on theappellant, he did not appear. Though, the appellant had an independentright of appeal but he did not file any regular appeal questioning thelegality of the order of the Sessions Judge convicting him for commissionof the offence of murder.

20. Third, the High Court, having found that there was norepresentation on behalf of the appellant despite personal service effectedon him, was justified in appointing a lawyer as amicus curiae to safeguardthe appellant’s interest and to assist the Court as well.

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21. Fourth, the amicus curiae had never made any complaint inCthe High Court for not giving him more time for preparation of the case.Even in this appeal, amicus curiae did not file any affidavit to this effect.Therefore, this submission raised by the amicus curiae is without anyfoundation and is accordingly dismissed.

22. In our considered opinion, the High Court, therefore, ensuredDcompliance with Section 377(3) of the Code and we do not find anyground to interfere in this finding.

23. The object of Section 377 of the Code is that when the Statefiles an appeal seeking enhancement of jail sentence awarded by theSessions Judge, the jail sentence cannot be enhanced unless the accusedEis given an opportunity to defend it. The accused is also entitled to prayfor his acquittal or award of lesser punishment. If the accused, afterservice of notice fails to raise this plea then the High Court would bejustified in deciding the State’s appeal on merits which is confined toonly for enhancement of jail sentence. We, therefore, find no groundto remand the case for rehearing of the appeal.F

24. Now coming to the question of enhancement of jail sentencemade by the High Court, we are inclined to concur with the reasoning ofthe High Court. Indeed, we are surprised to find as to how the SessionsJudge could award 10 years’ jail sentence to the appellant for commissionof offence of murder punishable under Section 302 IPC. It is simplyGunheard of.

25. Once the Sessions Judge found the appellant guilty forcommission of the offence of the murder punishable under Section 302IPC, the only punishment that can be awarded in law is either the “deathpenalty” or “imprisonment for life” and the “fine”.

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BHARATKUMAR RAMESHCHANDRA BAROT v. STATE OFGUJARAT [ABHAY MANOHAR SAPRE, J.]

26. Section 302 IPC, in clear terms, provides that “whoevercommits murder shall be punished with “death” or “imprisonment forlife” and shall also be liable to “fine”.

27. Any punishment less than the life imprisonment, as prescribedunder Section 302 IPC, if awarded by any Court is per se illegal andwithout authority of law. Indeed, there is no such discretion left with theCourt in awarding the punishment except to award the punishment whichis prescribed under Section 302 IPC as mentioned above.

28. In the light of the foregoing discussion, we are of the consideredopinion that the High Court was justified in modifying the jail sentenceawarded to the appellant by the Sessions Judge and rightly enhanced thesentence by awarding punishment of “Life imprisonment” under Section302 IPC to the appellant (accused) in place of “10 years jail sentenceawarded by the Sessions Judge.

29. No other point was argued by the learned counsel for theappellant except the one dealt with by this Court supra and we have notfound any merit therein.

30. The appeal thus fails and is accordingly dismissed.

Devika Gujral

Appeal dismissed.

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