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.
Indian Kanoon - http://indiankanoon.org/doc/15640/ 1

Nos.R.Muniyapparaj.Ws.C.Kumar. 9 of 2009 are filed under Sections 397 r/w 401 of Cr.Nos.Krishnamachari 3.No.1.8 &amp. they filed a revision before this court.Balasubramanian on 29 March.C.Nagarajan .O.org/doc/15640/ 2 . The petitioners in the criminal revision are the accused in CC. Egmore.Hariharan For 1st respondent in Crl.P. Sr.8085 of 2008 and respondents 2 and 3 in Crl. This court in turn.R. 9 of 2009 : Mr.O.K.OP. 9 of 2009 : Mr. Advocate [Criminal Side] : Mr.M. Govt.NAGAMUTHU.8 &amp.Krishnamachari vs S.Ramesh For Respondents 1 &amp. By the Labour Welfare Officer. forwarded the said revision for enhancement of sentence to the Court of Additional District Sessions Judge.No. Respondents in both Criminal Revision Petitions For petitioners in Crl. They are the workmen and P.C.A.B.K. 3 in Crl.P. Fast Track Court No. Counsel for Mr. Seeking to enhance the said sentence. Chennai.RC.8025/2008 AND CRL.No.. Sr.N. 2.Ramesh. Chennai.No.Nos.C.http://indiankanoon. 2010 1.R.R.I. Counsel Amicus curiae Criminal Revision Petition Nos. Chennai 600 035. The respondents 2 and 3 in this revision were aggrieved by the same. The learned Magistrate convicted the revision petitioners and imposed a fine of Rs. The Labour Welfare Officer. for the reasons stated therein. 9 of 2009 : Mr.2 and 4 before the trial court.Nos.000/.R. Rep.P.29 of the Industrial Disputes Act. J.The State of Tamil Nadu.10403/1995 on the file of the learned II Metropolitan Magistrate. III Circle.each. CRL. Chennai where the revision petitioners had already preferred Indian Kanoon . III Circle.8 AND 9/2009 S.8 &amp. The learned Magistrate took cognizance of the offence on the said complaint and then proceeded to try the case against the revision petitioners.8025 of 2008 and petitioners in Crl. filed a private complaint against the revision petitioners for an offence u/s.8 &amp..

learned counsel appearing for the petitioners in Crl.Rc. the law declared by the Supreme Court is binding on all Courts including High Courts.. section 439 was introduced which provides for exclusive power to the High Court alone to enhance the Indian Kanoon .&quot.K.When a decision of the Division Bench of this court is contrary to a ruling of the Supreme Court. B.Kumar. That is how both Crl.No.http://indiankanoon. 2.No.Rc.A. It was also brought to my notice that there are two judgments on this aspect by two learned Judges of this court.8025/2008 at the instance of the private parties are before this court for consideration.SHANKAR Vs.Krishnamachari vs S. As per Article 141 of the Constitution.BY ITS PROPRIETOR R. Thus. however.There shall be no appeal from a judgment of acquittal passed in any criminal court&quot. NANDIKARA KUMARAN] . In this matter.Ramesh. He brought to my notice that in the Code of Criminal Procedure. they have come up with Crl.000/each. 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.S.KALA reported in 2010 [1] MWN [Cr. CO. Therefore. the petitioners in the criminal original petition should not be deprived of their right to have effective contest in the case.&quot.No. To come to the said conclusion.RAGHVAN reported in 2002-2-L. wherein the Full Bench has held as follows:. The learned senior counsel firstly referred to section 407 of Code of Criminal Procedure. Again in the Code of Criminal Procedure 1898.Rc. Subsequently.34/2005 before the Sessions Court are also aggrieved by the quantum of sentence though enhanced by the Sessions Court. BY ITS ASSISTANT MANAGER [RESPONSE] C. 1872.] 403 [THE ASSISTANT COLLECTOR OF CUSTOMS Vs. this court thought it fit to request Mr. who are the witnesses in the case. the learned Judge has referred to a Full Bench Judgment of this court in 1995 1-L.Mr.The respondents 2 and 3 in this revision who were the revision petitioners in Crl. He would further submit that though revision was filed before this court by him rightly. 1872. 1861 wherein it is stated as follows:.No.C. 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. Mr.org/doc/15640/ 3 . The said judgment has been followed by yet another learned Single Judge of this court in R. there is no controversy subsisting and that view has to be followed. 1862 was made available to an appellate court in the Code of Criminal Procedure.OP. they have come up with Crl.-[Crl. However.M.34 of 2005 before the Fast Track Court.. it is this court which passed an order forwarding the revision to the Court of Session and therefore.No. 4.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. The revision petitioners herein who are the accused in the said case are still aggrieved. the view of the Division Bench is not good law. 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. a new Code of Criminal Procedure was introduced in 1882 wherein the said power given to the appellate court was again done away with. The learned Sessions Judge ultimately confirmed the conviction and.OP. LTD REP. The learned Single Judge has referred to section 399 Cr.8/2009.No. 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.8/2009 at the instance of the accused and Crl.] DCC 11.401 Cr. Seeking further enhancement.P.&quot.Ramesh. The first one is the judgment in JANANI ADVERTISING COUNSEL REP.P.Balasubramanian on 29 March.C.W.No. the appellate court has been provided with power of enhancement of sentence.B. Mr. in section 280. enhanced the punishment by enhancing the fine amount to Rs.8025/2008.RAMANUJAM Vs.8025/2008. 3. 2010 an appeal against conviction.Ramesh. BENEFIT COLMAN &amp. The criminal revision filed by the respondents 2 and 3 in the present revision was taken up in Crl.P.] 549 wherein the learned Single Judge has taken the view that such revision for enhancement of sentence before the Court of Session is maintainable. what was not available to an appellate court in the Code of Criminal Procedure.5. 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.W. wherein it is provided that the Court of Session shall exercise all the powers of the High Court exercisable u/s.-[CrL. learned senior counsel to assist the court as an Amicus Curiae regarding the said question.Rc.OP.A.

An appeal against acquittal lies only to the High Court u/s. instead. refers to the powers of the appellate court in general... would make it abundantly clear that the High Court can exercise its revisional power in respect of three situations.. 386 together with sections 377. Therefore. Section 401 Cr.. Similarly.. an appeal for enhancement of sentence lies only to the High Court u/s..C.C. the High Court can exercise. on a conjoint reading of sections 399 and 401 of the Code. State and others [1979 CRI. in my understanding of the Judgment of the Full Bench. In this regard. it should be understood that the Court of Session cannot exercise the powers which are conferred upon the High Court u/s.377 Cr. [1]in respect of an appeal from an order of acquittal.P.Balasubramanian on 29 March. It is thus clear that when S.P.C.397 Cr. viz. 378 and 374 Cr.P. the powers of appellate court u/s. viz.C.P.org/doc/15640/ 4 .. The Supreme Court has even gone to the Indian Kanoon . 2010 sentence by exercising its revisional power. Similarly.. 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.C.374 Cr.. section 377 has been incorporated empowering High Court to entertain the appeal by the state for enhancement of sentence. the learned Judge has referred to a Full Bench judgment of this court in ASSISTANT COLLECTOR OF CUSTOMS case.. Therefore. a glance through section 386 would go to show that it speaks of 3 contingencies.http://indiankanoon. and [3]in respect of an appeal for enhancement of sentence. Therefore. an appeal against conviction can be filed either before the Sessions court or before the High Court subject to certain conditions. all the powers relating to the appeal against conviction. appeal against acquittal and appeal for enhancement of sentence. Now. 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.C..In the judgment in JANANI ADVERTISING COUNSEL [cited supra]. 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. 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.386. I may refer to a judgment of the Allahabad High Court in Chandrapal v..377 and 378 and. for enhancement of sentence to the High Court. though the Court of Session is the appellate court as against the convictions.. 6. 1437] wherein the Allahabad High Court on a reference made by a Court of Sessions has answered the question as follows:.. 1974 in the place of section 439. [2]in respect of an appeal from a conviction. High Court and the Supreme Court depending upon the nature of each case. the Court of Session does not have the power to entertain any revision for enhancement of sentence.386 Cr.. The question referred to was whether a revision for enhancement of sentence can be maintained at the instance of a private party. Criminal P. L.5. But no such power has been expressly given to the High Court in exercise of its revisional power for enhancement of sentence. alone as an appellate court. Appeals against convictions on the other hand lie to the sessions court. inter-alia. 5. Therefore.. While doing so.J. which empowers the High Court as well as the Court of Session to entertain a revision.P.... it is only u/s.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. a conjoint reading of section 401 &amp. surely a private individual has got right of revision u/s. in my considered opinion. . However.. Therefore.401 Cr. it speaks of the powers of the High Court as well as the Court of Sessions without specifically mentioning those courts in that section.378 Cr..&quot. In the Code of Criminal Procedure. the said court can exercise the powers u/s. Nevertheless.. But the Court of Session has got no power to entertain appeal against acquittal as well as an appeal for enhancement of sentence.C.C.C.. it would be the High Court alone which would be empowered to exercise this jurisdiction. deals only with the powers which can be exercised by the High Court while exercising its revisional power.Krishnamachari vs S.. 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.P.P. 8. 7.C.P.377 and 378. Criminal P.

10.P.&quot. 1666] in paragraph 17 has held as follows:.The fact that the new Code of Criminal Procedure has expressly given a right to the State under Section 377. Therefore. 649).P.L.C.&quot.. It is clear that by making of this provision . contains three kinds of appellate powers viz.org/doc/15640/ 5 . So. 11. 12.C.J.. against the person making the application. lays down is that if an application for revision made on behalf of any person before the Sessions Judge is disposed of.&quot. 371] has also taken the similar view as the one taken by the Gujarat High Court. and (iii) appeal for enhancement of sentence.P. Criminal P. 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. AIR 1959 SC 436) : (1959 Cri. It is thus clear that the Court of Sessions does not possess the power to enhance the sentence while exercising appellate jurisdiction. the learned Judge has held that in view of the provision contained in Section 399 of Cr. therefore.. What sub-section (3) of Section 399 Criminal Procedure Code. But. and this power cannot be exercised as if the Sessions Judge is hearing an appeal. Similarly.&quot.C. Further.Balasubramanian on 29 March.Kumar. the power of the High court is an enlarged power whereas the power of the Court of Session is confined only to certain aspects.J. Mr.527). 2010 extent of holding in Nadir Khan v.. We must. while exercising the revisional power..L.L. and thereby the object of relieving congestion of the work in High Courts in part will be achieved to some extent.. the appellate power is vested with the Court of Sessions also. does not exclude the revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. I am in full agreement with the said submission made by Mr. it is a narrow power. Our conclusion. 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. State of Bihar. however. 6.J.&quot. So far as the latter two kinds of powers are concerned.. Babubhai Virabhai Miseria and another [1977 Cri. 1976 Cri. the Court of Sessions can exercise Indian Kanoon . according to the learned senior counsel section 399 Cr. As I have already stated. I regret that I am unable to agree with the said view.. to appeal against inadequacy of sentence which was not there under the old Code.P. K. they can be exercised only by the High Court under Sections 378 &amp. In Janani Advertising case cited supra. This reference is answered accordingly.C. (i) appeal against conviction (ii) appeal against acquittal.http://indiankanoon. while exercising its revisional power under Section 401 r/w 397 of Cr.Kumar.B.. Thus. To put it otherwise. Criminal Procedure Code is taken into consideration. &quot. AIR 1971 SC 757 : (1971 Cri.J. What is an appropriate case has to be left to the discretion of the High Court . a Division Bench of Gujarat High Court in Prabhudas Chhaganlal and another v. in respect of the appeal against conviction.. The Karnataka High Court in Patel Siddegowda v. u/s. (vide Alamgir v. Section 386 of Cr.... the High Court alone can exercise the power under Sections 378 &amp. Criminal Procedure Code. 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. This aspect is absolutely clear when sub-section (3) of Section 399.C.J. 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.P.L.P. or that in passing the order of sentence.C. 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. the trial Court has manifestly failed to consider the relevant facts.P. 1721 that:... 377 of Cr.B.so manifestly inadequate as to have resulted in failure of justice.401 Cr. the Court of Sessions can exercise all the powers of the High Court as revisional court. Therefore. 377 of Cr.&quot.. the learned senior counsel.Siddegowda and two others [1976 Crl. State (Delhi Administration). 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.P. 17.C.C. is that a Sessions Judge can entertain an application in revision against sentence and enhance the sentence in revision in certain cases. it was laid down that sentence can be enhanced if it was &quot. in Ram Narain v. Such a power to enhance the sentence can only be exercised by the High Court. State of U.L.Krishnamachari vs S. such person is barred from moving the High Court in exercise of its powers of revision. 9.

Ltd. S.Shankar v.RC. In the above said circumstances. Benett Colman &amp. etc.W. 2010 [1] MWN [Cr. etc.8025/2008 AND CRL. 2002 (2) L. Co.Nos. I am impelled to differ from the view expressed in Janani Advertising Counsel. 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.8 AND 9/2009 Indian Kanoon .OP. [Crl.NAGAMUTHU. in respect of revisional power. 2010 the appellate powers under Section 374 of Cr. it strikes one's mind that when the State itself can request for enhancement of sentence only to the High Court.Kala. 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. alone. ap/kmk CRL. the legislature would have even expressly conferred such power of appeal to enhance the sentence to the Court of Sessions also. J. v. there is difference between the High Court and the Court of Sessions.2010 ap/kmk .WHETHER THE COURT OF SESSIONS HAS GOT POWER TO ENTERTAIN A REVISION FOR ENHANCEMENT OF SENTENCE?&quot.] 549 and followed in R.03.org/doc/15640/ 6 . 29. Logically. Had it been the intention of the legislature to confer such power on the Court of Sessions also.o.No.Balasubramanian on 29 March.. 13.Krishnamachari vs S.C. obviously . with great respect. In view of the same. V. The question to be answered is as follows:&quot.] DCC 11.. 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. Therefore.S.P.http://indiankanoon.

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