Krishnamachari vs S.

Balasubramanian on 29 March, 2010

Madras High Court Madras High Court Krishnamachari vs S.Balasubramanian on 29 March, 2010 Dated 29.03.2010 Coram THE HON'BLE MR.JUSTICE S.NAGAMUTHU CRL.OP.No.8025/2008 AND CRL.RC.Nos.8 AND 9/2009 Crl.O.P.No.8025 of 2008:1.Krishnamachari 2.Nagarajan ... Petitioners Vs. 1.S.Balasubramanian 2.K.S.Sundram 3.T.K.S.Mani 4.K.Suresh ... Respondents Crl.O.P.No.8025 of 2008 filed under Section 482 of Cr.P.C. for the reason stated therein. Crl.R.C.Nos.8 & 9 of 2009:1.S.Balasubramanian, Director, Addison Paints & Chemicals Ltd., Huzur Gardens, Sembium, Chennai-600 011. 2.T.K.S.Mani, Vice President, Addison Paints & Chemicals Ltd., Huzur Gardens, Chennai-600011. ... Petitioners in both Criminal Revision Petitions. Vs.
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Krishnamachari vs S.Balasubramanian on 29 March, 2010

1.The State of Tamil Nadu, Rep. By the Labour Welfare Officer, III Circle, Chennai 600 035. 2.Krishnamachari 3.N.Nagarajan ... Respondents in both Criminal Revision Petitions For petitioners in Crl.O.P.No.8085 of 2008 and respondents 2 and 3 in Crl.R.C.Nos.8 & 9 of 2009 : Mr.K.M.Ramesh For Respondents 1 & 3 in Crl.O.P.No.8025 of 2008 and petitioners in Crl.R.C.Nos.8 & 9 of 2009 : Mr.B.Kumar, Sr. Counsel for Mr.K.R.Hariharan For 1st respondent in Crl.R.C.Nos.8 & 9 of 2009 : Mr.R.Muniyapparaj, Govt. Advocate [Criminal Side] : Mr.A.Ramesh, Sr. Counsel Amicus curiae Criminal Revision Petition Nos.8 & 9 of 2009 are filed under Sections 397 r/w 401 of Cr.P.C. for the reasons stated therein. CRL.OP.No.8025/2008 AND CRL.RC.Nos.8 AND 9/2009 S.NAGAMUTHU, J. The petitioners in the criminal revision are the accused in CC.No.10403/1995 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai. The Labour Welfare Officer, III Circle, Chennai, filed a private complaint against the revision petitioners for an offence u/s.29 of the Industrial Disputes Act. The learned Magistrate took cognizance of the offence on the said complaint and then proceeded to try the case against the revision petitioners. The learned Magistrate convicted the revision petitioners and imposed a fine of Rs.1,000/- each. The respondents 2 and 3 in this revision were aggrieved by the same. They are the workmen and P.Ws.2 and 4 before the trial court. Seeking to enhance the said sentence, they filed a revision before this court. This court in turn, forwarded the said revision for enhancement of sentence to the Court of Additional District Sessions Judge, Fast Track Court No.I, Chennai where the revision petitioners had already preferred
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Krishnamachari vs S.Balasubramanian on 29 March, 2010

an appeal against conviction. The criminal revision filed by the respondents 2 and 3 in the present revision was taken up in Crl.Rc.No.34 of 2005 before the Fast Track Court. The learned Sessions Judge ultimately confirmed the conviction and, however, enhanced the punishment by enhancing the fine amount to Rs.5,000/each. The revision petitioners herein who are the accused in the said case are still aggrieved. Therefore, they have come up with Crl.Rc.No.8/2009. 2.The respondents 2 and 3 in this revision who were the revision petitioners in Crl.Rc.No.34/2005 before the Sessions Court are also aggrieved by the quantum of sentence though enhanced by the Sessions Court. Seeking further enhancement, they have come up with Crl.OP.No.8025/2008. That is how both Crl.Rc.No.8/2009 at the instance of the accused and Crl.OP.No.8025/2008 at the instance of the private parties are before this court for consideration. 3.An important question arose before this court as to whether the court of Session has got power to entertain a revision for enhancement of sentence. Mr.B.Kumar, the learned senior counsel appearing for the accused submitted that such revision before the Court of Session for enhancement of sentence at the instance of a third party is not at all maintainable. However, Mr.K.M.Ramesh, learned counsel appearing for the petitioners in Crl.OP.No.8025/2008, who are the witnesses in the case, would submit that such revision for enhancement of sentence before the Court of Session is maintainable in view of what is contained in section 399 Code of Criminal Procedure. He would further submit that though revision was filed before this court by him rightly, it is this court which passed an order forwarding the revision to the Court of Session and therefore, the petitioners in the criminal original petition should not be deprived of their right to have effective contest in the case. It was also brought to my notice that there are two judgments on this aspect by two learned Judges of this court. The first one is the judgment in JANANI ADVERTISING COUNSEL REP.BY ITS PROPRIETOR R.RAMANUJAM Vs. BENEFIT COLMAN & CO. LTD REP. BY ITS ASSISTANT MANAGER [RESPONSE] C.P.RAGHVAN reported in 2002-2-L.W.-[CrL.] 549 wherein the learned Single Judge has taken the view that such revision for enhancement of sentence before the Court of Session is maintainable. To come to the said conclusion, the learned Judge has referred to a Full Bench Judgment of this court in 1995 1-L.W.-[Crl.] 403 [THE ASSISTANT COLLECTOR OF CUSTOMS Vs. NANDIKARA KUMARAN] , wherein the Full Bench has held as follows:- "When a decision of the Division Bench of this court is contrary to a ruling of the Supreme Court, the view of the Division Bench is not good law. As per Article 141 of the Constitution, the law declared by the Supreme Court is binding on all Courts including High Courts. In this matter, the decisions of the Supreme Court are clearly to the effect that a revision petition for enhancement of sentence by a private party is possible, there is no controversy subsisting and that view has to be followed." The learned Single Judge has referred to section 399 Cr.P.C., wherein it is provided that the Court of Session shall exercise all the powers of the High Court exercisable u/s.401 Cr.P.C. The said judgment has been followed by yet another learned Single Judge of this court in R.S.SHANKAR Vs. B.KALA reported in 2010 [1] MWN [Cr.] DCC 11. Since this question has got public importance as it goes to the very jurisdiction of the Sessions Judge to entertain revisions for enhancement of sentence, this court thought it fit to request Mr.A.Ramesh, learned senior counsel to assist the court as an Amicus Curiae regarding the said question. 4.Mr.A.Ramesh, the learned senior counsel has taken much pains to collect the materials in respect of the said question to assist the court in respect of the question posed before this court. The learned senior counsel firstly referred to section 407 of Code of Criminal Procedure, 1861 wherein it is stated as follows:- "There shall be no appeal from a judgment of acquittal passed in any criminal court". He brought to my notice that in the Code of Criminal Procedure, 1872, in section 280, the appellate court has been provided with power of enhancement of sentence. Thus, what was not available to an appellate court in the Code of Criminal Procedure, 1862 was made available to an appellate court in the Code of Criminal Procedure, 1872. Subsequently, a new Code of Criminal Procedure was introduced in 1882 wherein the said power given to the appellate court was again done away with. Again in the Code of Criminal Procedure 1898, section 439 was introduced which provides for exclusive power to the High Court alone to enhance the
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Krishnamachari vs S.Balasubramanian on 29 March, 2010

sentence by exercising its revisional power. In the Code of Criminal Procedure, 1974 in the place of section 439, section 377 has been incorporated empowering High Court to entertain the appeal by the state for enhancement of sentence. But no such power has been expressly given to the High Court in exercise of its revisional power for enhancement of sentence. Similarly, though the Court of Session is the appellate court as against the convictions, the power to enhancement of sentence as well as the power to set aside the acquittal have not been given as part of appellate power. Therefore, a survey of the Legislative history culminating in the Code of Criminal Procedure of 1974 would indicate that the Court of Session has not been empowered to entertain any appeal either for enhancement of punishment or for setting aside an order of acquittal. 5.In the judgment in JANANI ADVERTISING COUNSEL [cited supra], the learned Judge has referred to a Full Bench judgment of this court in ASSISTANT COLLECTOR OF CUSTOMS case, wherein I could notice that there was no occasion for the Full Bench to decide the question as to whether such revision for enhancement can be entertained by a Court of Session. The question referred to was whether a revision for enhancement of sentence can be maintained at the instance of a private party. The Full Bench had to say that since the power to prefer an appeal for enhancement of sentence has been given only to the State and not to a private individual, surely a private individual has got right of revision u/s.401 Cr.P.C., for enhancement of sentence to the High Court. Therefore, in my understanding of the Judgment of the Full Bench, it is only u/s.397 Cr.P.C., which empowers the High Court as well as the Court of Session to entertain a revision. 6. Section 401 Cr.P.C., deals only with the powers which can be exercised by the High Court while exercising its revisional power. While doing so, the High Court can exercise, inter-alia, the powers of appellate court u/s.386 Cr.P.C. Now, a glance through section 386 would go to show that it speaks of 3 contingencies, viz., [1]in respect of an appeal from an order of acquittal; [2]in respect of an appeal from a conviction; and [3]in respect of an appeal for enhancement of sentence. 7. An appeal against acquittal lies only to the High Court u/s.378 Cr.P.C. Similarly, an appeal for enhancement of sentence lies only to the High Court u/s.377 Cr.P.C. However, an appeal against conviction can be filed either before the Sessions court or before the High Court subject to certain conditions. Therefore, a conjoint reading of section 401 & 386 together with sections 377, 378 and 374 Cr.P.C. would make it abundantly clear that the High Court can exercise its revisional power in respect of three situations, viz., all the powers relating to the appeal against conviction, appeal against acquittal and appeal for enhancement of sentence. But the Court of Session has got no power to entertain appeal against acquittal as well as an appeal for enhancement of sentence. Therefore, on a conjoint reading of sections 399 and 401 of the Code, it should be understood that the Court of Session cannot exercise the powers which are conferred upon the High Court u/s.377 and 378 and, instead, the said court can exercise the powers u/s.374 Cr.P.C., alone as an appellate court. Therefore, in my considered opinion, the Court of Session does not have the power to entertain any revision for enhancement of sentence. 8. In this regard, I may refer to a judgment of the Allahabad High Court in Chandrapal v. State and others [1979 CRI. L.J. 1437] wherein the Allahabad High Court on a reference made by a Court of Sessions has answered the question as follows:- "5. ...................Reading both these sections together it is clear that appeals on the question of sentence on the ground of inadequacy and against acquittal passed by the original or appellate court lie only to the High Court. Appeals against convictions on the other hand lie to the sessions court, High Court and the Supreme Court depending upon the nature of each case. It is thus clear that when S.386, Criminal P.C. refers to the powers of the appellate court in general; it speaks of the powers of the High Court as well as the Court of Sessions without specifically mentioning those courts in that section. Nevertheless, if the powers of the appellate court are to be exercised with respect to matters which arise out of enhancement of sentence or acquittal then by virtue of Ss.377 and 378, Criminal P.C. it would be the High Court alone which would be empowered to exercise this jurisdiction. The Supreme Court has even gone to the
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Krishnamachari vs S.Balasubramanian on 29 March, 2010

extent of holding in Nadir Khan v. State (Delhi Administration), 1976 Cri.L.J. 1721 that:- "The fact that the new Code of Criminal Procedure has expressly given a right to the State under Section 377, Criminal P.C. to appeal against inadequacy of sentence which was not there under the old Code, does not exclude the 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 ........" It is thus clear that the Court of Sessions does not possess the power to enhance the sentence while exercising appellate jurisdiction. Such a power to enhance the sentence can only be exercised by the High Court. 6. This reference is answered accordingly." 9. Further, a Division Bench of Gujarat High Court in Prabhudas Chhaganlal and another v. Babubhai Virabhai Miseria and another [1977 Cri.L.J. 1666] in paragraph 17 has held as follows:- " 17. Our conclusion, therefore, is that a Sessions Judge can entertain an application in revision against sentence and enhance the sentence in revision in certain cases. It is clear that by making of this provision , the cases of enhancement of sentence at the instance of private party which would have normally gone to the High Court in respect of sentences passed by Magistrate subordinate to the Sessions Courts would now go to the Sessions Court; and thereby the object of relieving congestion of the work in High Courts in part will be achieved to some extent. We must, however, make it clear that interference in revision with an order of sentence or order of acquittal is subject to the limitations laid down by the Supreme Court; and this power cannot be exercised as if the Sessions Judge is hearing an appeal. Thus, in respect of enhancement of sentence in revision the enhancement can be made only if the Court is satisfied that the sentence imposed by the trial Court is unduly lenient, or that in passing the order of sentence, the trial Court has manifestly failed to consider the relevant facts, (vide Alamgir v. State of Bihar, AIR 1959 SC 436) : (1959 Cri.L.J.527). Similarly, in Ram Narain v. State of U.P., AIR 1971 SC 757 : (1971 Cri.L.J. 649), it was laid down that sentence can be enhanced if it was "so manifestly inadequate as to have resulted in failure of justice." 10. The Karnataka High Court in Patel Siddegowda v. K.Siddegowda and two others [1976 Crl.L.J. 371] has also taken the similar view as the one taken by the Gujarat High Court. "..... This aspect is absolutely clear when sub-section (3) of Section 399, Criminal Procedure Code is taken into consideration, because sub-section (3) contemplates an application for revision being made before a Sessions Judge on behalf of any person and exercise of powers under Section 399, Criminal Procedure Code. What sub-section (3) of Section 399 Criminal Procedure Code, lays down is that if an application for revision made on behalf of any person before the Sessions Judge is disposed of, against the person making the application, such person is barred from moving the High Court in exercise of its powers of revision." 11. Mr.B.Kumar, learned senior counsel would submit that the language employed in sections 397 and 401 would make it abundantly clear that insofar as the High Court is concerned, u/s.401 Cr.P.C., the power of the High court is an enlarged power whereas the power of the Court of Session is confined only to certain aspects. To put it otherwise, it is a narrow power. Therefore, according to the learned senior counsel section 399 Cr.P.C., cannot be read to mean that the Court of Sessions is equivalent to the High Court so that it can exercise all the powers of the High Court even in respect of acquittals and quantum of punishment. I am in full agreement with the said submission made by Mr.B.Kumar, the learned senior counsel. 12. In Janani Advertising case cited supra, the learned Judge has held that in view of the provision contained in Section 399 of Cr.P.C, the Court of Sessions can exercise all the powers of the High Court as revisional court. I regret that I am unable to agree with the said view. As I have already stated, Section 386 of Cr.P.C. contains three kinds of appellate powers viz., (i) appeal against conviction (ii) appeal against acquittal; and (iii) appeal for enhancement of sentence. So far as the latter two kinds of powers are concerned, they can be exercised only by the High Court under Sections 378 & 377 of Cr.P.C. Therefore, while exercising the revisional power, the High Court alone can exercise the power under Sections 378 & 377 of Cr.P.C. But, in respect of the appeal against conviction, the appellate power is vested with the Court of Sessions also. So, while exercising its revisional power under Section 401 r/w 397 of Cr.P.C. the Court of Sessions can exercise
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Krishnamachari vs S.Balasubramanian on 29 March, 2010

the appellate powers under Section 374 of Cr.P.C. alone. Therefore, in respect of revisional power, obviously , there is difference between the High Court and the Court of Sessions. A survey of the Scheme of the Code may indicate that the legislature has though it fit to confer power of enhancement of sentence only to the High Court that too at the instance of the State. Had it been the intention of the legislature to confer such power on the Court of Sessions also, the legislature would have even expressly conferred such power of appeal to enhance the sentence to the Court of Sessions also. Logically, it strikes one's mind that when the State itself can request for enhancement of sentence only to the High Court, it can never be said that the legislature would have thought of giving such power to the Court of Sessions to enhance the sentence at the instance of a third party. 13. In the above said circumstances, with great respect, I am impelled to differ from the view expressed in Janani Advertising Counsel, etc. v. Benett Colman & Co. Ltd., etc., 2002 (2) L.W. [Crl.] 549 and followed in R.S.Shankar v. V.Kala, 2010 [1] MWN [Cr.] DCC 11. In view of the same, I deem it appropriate to refer the following question to be placed before MY LORD THE HONOURABLE CHIEF JUSTICE for consideration to refer the same to a Division Bench to answer. The question to be answered is as follows:"WHETHER THE COURT OF SESSIONS HAS GOT POWER TO ENTERTAIN A REVISION FOR ENHANCEMENT OF SENTENCE?" 29.03.2010 ap/kmk .o. S.NAGAMUTHU, J. ap/kmk CRL.OP.No.8025/2008 AND CRL.RC.Nos.8 AND 9/2009

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