CrPC II - Re-test

Name - Utkarsh Mishra

PRN - 17010224079
Division - A

Answer

1(i) In the above situation, the aspect of Surendra Nath was applied and it stood the tests on the
following two grounds :
Firstly, the judgement was pronounced in open court and there was no discrepancy as to the
accused having been communicated of it or not.
Secondly, the judgement didn’t lack of authority as Mr. D was in consonance with the judgement
and there were apt discussions regarding it between the two.
Now, as per Section 353 CrPC, an appeal under Section 377 has to be judged by a court of
competent authority. Now, taking reference from Bani Singh & Ors V State of UP, it is laid
down that if the court structure has been changed with valid authority then there is nothing to
disband the judgement and make it a nullity. Hence the judgement is absolutely valid even if a
single judge delivered it.

ii) The ratio of Surender Singh V. State of UP is not needed to be revisited because in Surender
Singh, the judgement was pronounced in open court in the name of both the judges and the
discrepancy was regarding the aspect of signature or written authorization by one of the
judge(the deceased one), while in the present case, the dispute talks about whether a single judge
is competent enough to deliver a judgement that required the authority of a division bench. But
having answered that a judgement is delivered by a two judge bench and the judgement is also to
be delivered by a two judge bench, the improvised and authorised change in the structure of the
court rendered ability to the single judge to pronounce a division judge bench judgement. Also,
since its a technical fallacy and it is held that technical disabilities do not render a judgement
void as in such cases there is failure of justice as laid down in the Narendra Nath Khware
Case.

2)(I) The petition by the state cannot be termed as a petition for enhancement of sentence as the
appeal is asking for a conviction of the accused under Section 376D which he was acquitted of.
Even though it may be agreed that the sentence would increase if the accused is convicted unver
376D but it will not be termed as petition for increase of sentence because of the fact that a
petition of the sorts is specifically filed under Section 377 CrPC while the other is filed under
Section 378 CrPC.

(II) If an accused is convicted under the alternated charge or a different charge in an appeal for
convicting, then to prevent injustice, the convicted person has a right to appeal against the
conviction given against him in the appeal on him. This is important as the court of appeals is a
court of corrections and if there are no judicial correction measures on convictions laid out in
appeals then there the ends of justice would not meet. This was laid down in the case of
BharatKumar Rameshchandra Bharot V. State of Gujarat.

(III) In the case of the SC being the second appellate authority, the power of the Supreme Court
under Article 136 of the Constitution of India are very wide and once the court has granted leave
to appeal in exercise of that power such an objection is not available. Therefore, Supreme Court
adheres to no procedural infirmities and can be approached to in all cases where miscarriage of
justice is seen. Referring to Arunachalam versus P.S.R. Sadhanantham and Another [ (1979)
2 SCC 297 ]. It is observed that "appellate power vested in the Supreme Court under Article 136
of the Constitution is not to be confused with ordinary appellate power exercised by the appellate
courts and appellate tribunals under specific statutes. It is a plenary power ’exercisable outside
the purview of ordinary law’ to meet the pressing demands of justice. Article 136 of the
Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court
nor inhibits anyone from invoking the Court’s jurisdiction. The power is vested in the Supreme
Court but the right to invoke the Court’s jurisdiction is vested in no one. The exercise of the
power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.
Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice the
Supreme Court cannot refrain from doing its duty and abstain from interfering on the ground that
a private party and not the State has invoked the Court’s jurisdiction.

In cases of High Court being the second appellate authority, the same is held considering the
original criminal jurisdiction of the HC under Section 482 CrPC, and taking reference to the case
of Shyam Deo Pandey V.State Of UP, it is pertinent to mention that the HC also lacks no
procedural limitations and if an appeal is accepted then it is bound by no question of jurisdiction.