# Maiyya Deen Revisionist v. State of U.P

- **Citation:** (2025) 10 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-08
- **Case number:** Criminal Revision No. 2206 of 2015
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maiyya-deen-revisionist-v-state-of-u-p-54744
- **Pages:** 24

## Headnote

G.A.

Issue for Consideration
Whether in absence of any appeal by the
complainant or State for enhancement, the
Appellate Court cannot enhance the sentence as
awarded by the trial court in an appeal filed by
an accused convict challenging his conviction
and sentence.
Head Notes
The Prevention of Food Adulteration Act,
1954- Sections 7/16 & 13(2) ; The Code of
Criminal
Procedure,
1973-
Section
397/401 & 386- No finding by the trial
court regarding receipt of the notice under
Section 13(2) of the Prevention of Food
Adulteration Act - In the absence of their
being any proof of delivery of the said
report to the accused the valuable right
available to the accused to seek further
test of the sample by the Central Food
Laboratory stands defeated- Judgments
and orders impugned are set aside-
Revision Allowed. (E-15)

Held- In an appeal against conviction by an
accused Appellate Court cannot enhance the
sentence without there being an appeal filed by
the
State
or
the
complainant
for
its
enhancement.
(Para 15 & 16)

Case Law Cited
Sachin Vs. State of Maharashtra : 2025 SCC
OnLine SC 834;Nagarajan v. State of T.N. :
(2025) 8 SCC 331;Vijendra Vs. State of Uttar
Pradesh) : 2020 (15) SCC 763;Narayana Prasad
Sahu Vs. State of Madhya Pradesh : 2022 (1)
SCC 87
840 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
The Prevention of Food Adulteration Act, 1954;
The Code of Criminal Procedure, 1973

List of Keywords
Receipt of Notice; Section 13(2) of the
Prevention of Food Adulteration Act; Appeal
against Conviction; Appellate Court cannot
enhance the sentence; without there being an
appeal filed by the State or complainant for
enhancement

Case Arising From
Judgment and order dated 12.12.2013 passed
by the Chief Judicial Magistrate, Kalpi Jalaun at
Orai in Complaint Case No. 534 of 2010
whereby the accused Thakur Das was acquitted
of the charges levelled against him for offence
under Section 7/16 P.F.A. Act, 1954 whereas
the accused Maiyya Deen was convicted under
Section 7/16 of the Prevention of Food
Adulteration Act, 1954 and sentenced six
months imprisonment and a fine of Rs. 1,000/-
and in default of payment of fine to two months
additional imprisonment. The accused Maiyya
Deen preferred an appeal being Criminal Appeal
No. 01 of 2014 which was dismissed vide
judgment and order dated 10.06.2015 passed
by the 3rd Additional Sessions Judge, Jalaun at
Orai whereby the accused was convicted and
sentenced to two years rigorous imprisonment,
fine of Rs. 10,000/- and in default of payment of
fine six months additional simple imprisonment.

Appearances for Parties
Counsel for Revisionist(s) : Ahmed Saeed, M.
Asif, M. Islam
Counsel for Opposite Party(s) : Govt.advocate

## Text

_Characters 0–39,778 of 79,595. This is a partial read: ask again with offset=39778 for what follows._

10 All. Maiyya Deen Vs. State of U.P.
839
this case, being the case of dowry
death as defined under Section 80 of the
Bharatiya Nyaya Sanhita (BNS), 2023. Here it
would also apposite to mention that in the
context of nature of the offence like present
case, this Court is of the view that cruelty
means willful conduct of a nature likely to lead
the woman concerned to commit suicide or
danger to her life or health. The word ?soon
before her death? in Section 118 of the
Bharatiya Sakshya Adhiniyam (BSA), 2023
cannot be limited by fixing time limit. It is up to
the Court to determine the same, depending
upon the facts and circumstances of each case.
The offence is heinous in nature and the trial of
the applicant is proceeding, in which two
prosecution witnesses, namely, complainant
(father of the deceased) and Shubhanya (niece
of deceased/eye witness) have been testified
and they have supported the prosecution case.
The statement of Shubhanya, who is eyewitness and star witness of the prosecution,
cannot be disbelieved at this stage. Regarding
consideration of bail prayer in the cases,
wherein the offences are heinous in nature, the
Hon'ble Apex Court in the case of X vs. State
of Rajasthan and Another, 2024 SCC
OnLine SC 3539, has held that if the trial of the
accused has started, his bail should not be
granted in heinous offences like murder, rape
and dacoity, etc.

8-In view of the above, I find no good
ground to enlarge the applicant on bail.

9-Accordingly,
the
instant
bail
application is rejected.

10-It
is
made
clear
that
any
observation made in this order is for the
purpose of disposal of bail application and shall
not affect the merit of the trial.
----------
(2025) 10 ILRA 839
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.10.2025

BEFORE
THE HON'BLE SAMIT GOPAL, J.

Criminal Revision No. 2206 of 2015

Maiyya Deen ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Ahmed Saeed, M. Asif, M. Islam

Counsel for the Opposite Party:
G.A.

Issue for Consideration
Whether in absence of any appeal by the
complainant or State for enhancement, the
Appellate Court cannot enhance the sentence as
awarded by the trial court in an appeal filed by
an accused convict challenging his conviction
and sentence.
Head Notes
The Prevention of Food Adulteration Act,
1954- Sections 7/16 & 13(2) ; The Code of
Criminal
Procedure,
1973-
Section
397/401 & 386- No finding by the trial
court regarding receipt of the notice under
Section 13(2) of the Prevention of Food
Adulteration Act - In the absence of their
being any proof of delivery of the said
report to the accused the valuable right
available to the accused to seek further
test of the sample by the Central Food
Laboratory stands defeated- Judgments
and orders impugned are set aside-
Revision Allowed. (E-15)

Held- In an appeal against conviction by an
accused Appellate Court cannot enhance the
sentence without there being an appeal filed by
the
State
or
the
complainant
for
its
enhancement.
(Para 15 & 16)

Case Law Cited
Sachin Vs. State of Maharashtra : 2025 SCC
OnLine SC 834;Nagarajan v. State of T.N. :
(2025) 8 SCC 331;Vijendra Vs. State of Uttar
Pradesh) : 2020 (15) SCC 763;Narayana Prasad
Sahu Vs. State of Madhya Pradesh : 2022 (1)
SCC 87
840 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
The Prevention of Food Adulteration Act, 1954;
The Code of Criminal Procedure, 1973

List of Keywords
Receipt of Notice; Section 13(2) of the
Prevention of Food Adulteration Act; Appeal
against Conviction; Appellate Court cannot
enhance the sentence; without there being an
appeal filed by the State or complainant for
enhancement

Case Arising From
Judgment and order dated 12.12.2013 passed
by the Chief Judicial Magistrate, Kalpi Jalaun at
Orai in Complaint Case No. 534 of 2010
whereby the accused Thakur Das was acquitted
of the charges levelled against him for offence
under Section 7/16 P.F.A. Act, 1954 whereas
the accused Maiyya Deen was convicted under
Section 7/16 of the Prevention of Food
Adulteration Act, 1954 and sentenced six
months imprisonment and a fine of Rs. 1,000/-
and in default of payment of fine to two months
additional imprisonment. The accused Maiyya
Deen preferred an appeal being Criminal Appeal
No. 01 of 2014 which was dismissed vide
judgment and order dated 10.06.2015 passed
by the 3rd Additional Sessions Judge, Jalaun at
Orai whereby the accused was convicted and
sentenced to two years rigorous imprisonment,
fine of Rs. 10,000/- and in default of payment of
fine six months additional simple imprisonment.

Appearances for Parties
Counsel for Revisionist(s) : Ahmed Saeed, M.
Asif, M. Islam
Counsel for Opposite Party(s) : Govt.advocate

(Delivered by Hon'ble Samit Gopal, J.)

1. List revised.

2. Heard Sri M. Asif, learned counsel
for the revisionist and Sri Bade Lal Bind,
learned counsel for the State and perused
the record. The trial court records were
summoned which have also been perused.

3. Challenging the judgment and
order dated 12.12.2013 passed by the Chief
Judicial Magistrate, Kalpi Jalaun at Orai in
Complaint Case No. 534 of 2010 (State of
U.P. Vs. Thakur Das and another) whereby
the accused Thakur Das was acquitted of
the charges levelled against him for offence
under Section 7/16 P.F.A. Act, 1954
whereas the accused Maiyya Deen was
convicted under Section 7/16 of the
Prevention of Food Adulteration Act, 1954
and sentenced six months imprisonment
and a fine of Rs. 1,000/- and in default of
payment of fine to two months additional
imprisonment. The accused Maiyya Deen
preferred an appeal being Criminal Appeal
No. 01 of 2014 (Maiyya Deen Vs. State of
U.P.) which was dismissed vide judgment
and order dated 10.06.2015 passed by the
3rd Additional Sessions Judge, Jalaun at
Orai whereby the accused was convicted
and sentenced to two years rigorous
imprisonment, fine of Rs. 10,000/- and in
default of payment of fine six months
additional simple imprisonment. Thus
present criminal revision has been filed
before this Court.

4. The facts of the case are that on
31.05.1995 the Chief Food Inspector found
the accused revisionist selling milk on
Police Line, Churkhi Road, Orai and on
suspicion of the same to be adulterated
gave him a notice under Form-VI after
which he purchased 750 ml of the said milk
by paying Rs. 6/- to him from a can after
stirring it and it was homogenized. The
seller informed him that he is a servant of
Thakur Das. The purchased milk was then
distributed in three parts and sealed in three
bottles in front of the seller and witnesses
in equal quantity as per rules. The persons
there were requested be witnesses to the
same who denied it. Form-VII was then
prepared and one of the sealed pack was
sent to the Food Analyst through registered
parcel for its analysis whereas the two other
10 All. Maiyya Deen Vs. State of U.P.
841
bottles were stored in the office of the
Chief Medical Officer, Orai.

5. The Food Analyst vide his report
dated 06.07.1995 found the sample of
buffalo milk to contain milk fat 5.4 percent
and milk solids not fat 6.6 percent and thus
opined that as per standard, the sample is
milk fat deficient by 10 percent and milk
solids not fat deficient by about 27 percent.
A complaint dated 01.11.1995 was thus
filed before the Court of Chief Judicial
Magistrate, Jalaun at Orai for offence under
Section 7/16 of the Prevention of Food
Adulteration Act, 1954. It is stated by the
prosecution that notice under Section 13(2)
of the Act was sent by registered post to the
accused.

6. The statement under Section 244
Cr.P.C. of Chutkan Verma the Chief Food
Inspector was recorded as PW-1, Hari
Mohan Verma the Food Clerk in the office
of CMO concerned was recorded as PW-2.
Subsequently, charge under Section 7/16 of
the Prevention of Food Adulteration Act,
1954 was framed against the revisionist
vide order dated 28.05.2010 passed by the
Chief Judicial Magistrate, Orai. The
statement of Chutkan Verma the Chief
Food Inspector was recorded as PW-1
under Section 246 Cr.P.C., the witness
Krishna Prasad was recorded as PW-3. The
accused in his statement under Section 313
Cr.P.C. denied the prosecution case. He
stated that he is a handicapped and unable
to ride a bicycle. He further states that he is
not a servant of Thakur Das and does not
sell milk. In defence Mata Prasad DW-1
was produced who stated that Thakur Das
used to repair watches and had a shop
besides a hotel at the said place. He was not
dealing in milk. Maiyya Deen was not
servant of Thakur Das. The trial court after
recording of the evidence passed the
judgment and order as aforesaid. Against
the said judgment and order, the accused
revisionist Maiyya Deen preferred an
appeal before the Appellate Court which
was dismissed but the sentence as imposed
on him was enhanced as aforesaid. This
revision has thus been filed challenging the
judgments and orders as aforesaid.

7.
Learned
counsel
for
the
revisionist raised two submissions before
the Court. The first submission is a
challenge to the judgment and order of the
Appellate Court. It is submitted that the
judgment and order of the trial court dated
12.12.2013 convicted and sentenced him
for offence under Section 7/16 of the
Prevention of Food Adulteration Act, 1954
to six months imprisonment, fine of Rs.
1,000/- and in default of payment of fine to
two
months
additional
imprisonment
against which an appeal was preferred
before the Appellate Court in which the
Appellate Court has enhanced the sentence
as imposed against the revisionist to two
years rigorous imprisonment, fine of Rs.
10,000/- and in default of payment of fine
to six months simple imprisonment. It is
submitted that there was no appeal filed by
the complainant or State for enhancement
against the judgment and order of the trial
court but in an appeal challenging the
judgment and order of conviction of the
trial court by the accused, the Appellate
Court has enhanced the sentence as
awarded to him. It is submitted that the
view as taken by the Appellate Court is
totally illegal inasmuch in the absence of
any appeal by the complainant or State for
enhancement, the Appellate Court cannot
enhance the sentence as awarded by the
trial court in an appeal filed by an accused
convict challenging his conviction and
sentence. It is further submitted that in an
appeal from a conviction, the Appellate
842 INDIAN LAW REPORTS ALLAHABAD SERIES
Court cannot enhance the sentence awarded
to the accused by the trial court.

8. The Apex Court in the case
Sachin Vs. State of Maharashtra : 2025
SCC OnLine SC 834 has held that in an
filed by an accused / convict against his
conviction the sentence cannot be enhanced
by the appellate court. It was held as under:

 18.We find merit in the
submission of learned counsel for the
appellant that the record does not reflect
that the counsel for the appellant-accused
or the accused himself was heard on the
question of modifying the charge from a
minor offence to a major offence and
thereby altering the finding and enhancing
the sentence. The further and more
important submission is that, in an appeal
filed by the accused/convict the sentence
cannot be enhanced by the appellate court.

 19.Section386CrPCdiscus
ses the powers of the appellate court. For
ease of reference, Section 386 reads as
under:

 386. Powers of the Appellate
Court.After perusing such record and
hearing the appellant or his pleader, if he
appears, and the Public Prosecutor if he
appears, and in case of an appeal under
section 377 or section 378, the accused, if
he appears, the Appellate Court may, if it
considers that there is no sufficient ground
for interfering, dismiss the appeal, or may
 (a) in an appeal from an order or
acquittal, reverse such order and direct that
further inquiry be made, or that the accused
be re-tried or committed for trial, as the
case may be, or find him guilty and pass
sentence on him according to law;
 (b)
in
an
appeal
from
a
conviction
 (i)
reverse
the
finding
and
sentence and acquit or discharge the
accused, or order him to be re-tried by a
Court of competent jurisdiction subordinate
to such Appellate Court or committed for
trial, or
 (ii) alter the finding, maintaining
the sentence, or

 (iii) with or without altering the
finding, alter the nature or the extent, or the
nature and extent, of the sentence, but not
so as to enhance the same

 (c) in an appeal for enhancement
of sentence

 (i)
reverse
the
finding
and
sentence and acquit or discharge the
accused or order him to be re-tried by a
Court competent to try the offence, or
 (ii) alter the finding maintaining
the sentence, or
 (iii) 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;

 (d) in an appeal from any other
order, alter or reverse such order;
 (e) make any amendment or any
consequential or incidental order that may
be just or proper:
 Provided that the sentence shall
not be enhanced unless the accused has had
an opportunity of showing cause against
such enhancement:

 Provided
further
that
the
Appellate Court shall not inflict greater
punishment for the offence which in its
opinion the accused has committed, than
might have been inflicted for that offence
by the Court passing the order or sentence
under appeal.
10 All. Maiyya Deen Vs. State of U.P.
843
 The said provision delineates four
categories of appeals, (i) an appeal from an
order of acquittal; (ii) an appeal from
conviction; (iii) an appeal for enhancement
of sentence; and (iv) an appeal from any
other order.

 20.Section377CrPCwhich
provides
for
appeal
by
the
State
Government
against
inadequacy
of
sentence was a novel provision brought in
by theCrPC. The 41stLaw Commission
had noted in its report that, pre-1973, in the
absence of a statutory provision which
permitted the State to prefer an appeal
against inadequate sentence, the State was
compelled to invoke the revisional powers
of the High Court for correction of any
error in sentencing. Finding this to be
unsatisfactory,
the
Law
Commission
recommended that the State Government
should be able to appeal against an
inadequate sentence before an ordinary
Court of Appeal as well. To effectuate this
intent, the Parliament inserted Section 377.

 20.1.InNadir Khanv.State
(Delhi
Admn.),(1975)
2
SCC
406(Nadir Khan), the petitioner was
found in illegal possession of ganja
weighing 7 kgs, and was convicted under
Section61(a)of thePunjab Excise Act,
1914as extended to Delhi and sentenced
to two months' rigorous imprisonment. As
no right to appeal was available, an
unsuccessful
revision
application
was
preferred before the Sessions Court.
Aggrieved, the petitioner had then moved
the
High
Court
under
Section482CrPCread
with
Article227of theConstitutionagainst
the conviction. In turn, the High Court left
the petitioner worse off as it thought that
the sentence awarded was inadequate.
Bysuo motoinvoking its revisional
jurisdiction, the High Court enhanced the
sentence to six months. In a special leave
petition before this Court, the question
raised was, whether, the High Court, in a
revision under Section401CrPC, has the
jurisdiction to enhance the sentence in the
absence of an appeal by the State against
the inadequacy of sentence under Section
377.

 20.1.1.Noting that the High
Court did leave the petitioner worse off,
this Court speaking through Goswami, J.,
characterised the question to be an
unmerited
doubt
on
the
undoubted
jurisdiction
of
the
High
Court
in
actingsuo motuin criminal revision in
appropriate cases. It was observed that the
High Court is not required to act in revision
merely through a conduit application at the
instance of an aggrieved party. It was held
as follows:

 The High Court, as an effective
instrument for administration of criminal
justice, keeps a constant vigil and wherever
it finds that justice has suffered, it takes
upon itself as its bounden duty to suo motu
act where there is flagrant abuse of the
law.The character of the offence and
the nature of disposal of a particular
case by the subordinate court prompt
remedial action on the part of the High
Court for the ultimate social good of the
community, even though the State may
be slow or silent in preferring an appeal
provided for under the new Code. This
position was true and extant in the old
Code of 1898 and this salutary power has
not been denied by Parliament under the
new Code by rearrangement of the sections.
It is true the new Code has expressly given
a
right
to
the
State
under
Section377CrPCto
appeal
against
inadequacy of sentence which was not
844 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

 Section 401 expressly preserves
the power of the High Court, by itself, to
call for the records without the intervention
of another agency and has kept alive the
ancient exercise of power when something
extraordinary comes to the knowledge of
the High Court. The provisions under
Section401read
with
Section386(c)(iii)CrPCare
clearly
supplemental to those under Section 377
whereby appeals are provided for against
inadequacy of sentence at the instance of
the
State
Government
or
Central
Government, as the case may be. There is
therefore absolutely no merit in the
contention of the learned counsel that the
High Court acted without jurisdiction in
exercising the power of revision suo motu,
for enhancement of the sentence in this
case. The application stands rejected.

 (underlining by us)

 20.2.InEknath
Shankarrao
Mukkawarv.State
of
Maharashtra,(1977) 3 SCC 25(Eknath
Shankarrao Mukkawar), an appeal was
indeed preferred by the State Government
under Section377(1)CrPCagainst the
inadequacy of the sentence of the appellant
convicted under Section16(1)(a)(i)read
with
Sections2(i)(1)and7(i)of
thePrevention of Food Adulteration Act,
1954and sentenced to imprisonment till
the rising of the Court and to pay a fine of
Rs.
500
and
in
default
rigorous
imprisonment for two months. The High
Court allowed the appeal of the State with
regard to the inadequacy of the sentence
and while affirming the conviction of the
appellant
under
aforesaid
provisions
enhanced the sentence to six months'
simple imprisonment and a fine of Rs. 1000
and in default simple imprisonment for two
months. In appeal before this Court, the
principal submission of the appellant was
that the appeal under Section 377(1) was
not maintainable due to the bar operating
then under Section 377(2). This argument
is not relevant for our consideration in the
present
case.
Additionally
and
alternatively, it was argued that the appeal
not being maintainable, the High Court
could not have, in any event, invoked its
revisional
powers
under
Section401CrPCto
enhance
the
sentencesuo motoas the power of the
High Court to enhance sentence which was
available
under
Sections435/439CrPCof
the
oldCrPCis absolutely replaced by the
provision
of
appeal
under
Section377CrPCof the newCrPC.
Rejecting the submission, a three-judge
Bench of this Court held that the High
Court has revisional powers to,suo motu,
enhance the sentence. It was held that:

 6. We should at once remove
the misgiving that the newCriminal
Procedure Code, 1973, has abolished the
High Court's power of enhancement of
sentence
by
exercising
revisional
jurisdiction,suo motu. The provision for
appeal against inadequacy of sentence by
the State Government or the Central
Government does not lead to such a
conclusion.
High
Court's
power
of
enhancement
of
sentence,in
an
appropriate case, by exercising suo motu
power of revision is still extant under
Section397read with Section401of
theCriminal
Procedure
Code,
1973,
10 All. Maiyya Deen Vs. State of U.P.
845
inasmuch as the High Court can by
itself call for the record of proceedings of
any inferior criminal court under its
jurisdiction.The provision of Section
401(4) is a bar to a party, who does not
appeal, when appeal lies, but applies in
revision. Such a legal bar under Section
401(4) does not stand in the way of the
High Court's exercise of power of revision,
suo motu, which continues as before in the
new Code.

 (underlining by us)

 The aforesaid judgments of this
Court settled the question that a High Court
has the jurisdiction tosuo motoenhance
the sentence under theCrPCby invoking
its
revisional
powers.
The
pertinent
question then is, whether, the High Court
could enhance the sentence under its
revisional powers in a convict's appeal
against conviction.

 21.In
this
case
we
are
concerned
with
an
appeal
from
a
conviction. In such an appeal the appellate
court can exercise its powers in three ways,
as per clause (b) of Section386CrPC.
Clause (c) is with regard to an appeal for
enhancement of sentence. While an appeal
from a conviction is filed by the accused,
an appeal from an order of acquittal or for
enhancement of sentence could be filed
either by the State or by the complainant or
even
by
the
victim
under
Section378CrPCand in the case of a
victim as per proviso to Section 372. In the
case of an appeal from any other order i.e.
not an order of conviction or acquittal, the
High Court can either alter or reverse such
order under clause (d). The High Court has
also the power to make an amendment or
pass any consequential or incidental order
that may be just or proper in any of the
above situations. However, there are two
provisos to Section 386. The first proviso
states that the sentence shall not be
enhanced unless the accused has had an
opportunity of showing cause against such
enhancement. The second proviso states
that the appellate court shall not inflict
greater punishment for the offence which in
its opinion the accused has committed, than
might have been inflicted for that offence
by the Court passing that order for sentence
under appeal.

 22.Some judgments of this
Court
on
the
interpretation
of
Section386CrPCmay be referred to at
this stage.

 22.1.InSahab
Singhv.State of Haryana,(1990) 2
SCC 385:AIR 1990 SC 1188(Sahab
Singh) seven appellants were convicted
by the learned Additional Sessions Judge,
Sonepat on three counts and sentenced as
follows:

(a) rigorous imprisonment for one year
under Section148,IPC;

 (b) rigorous imprisonment for six
months under Section323/149,IPC; and

 (c) imprisonment for life and a
fine
of
Rs.
200
under
Section302/149,IPC.

 All the said substantive sentences
were directed to run concurrently.

 The seven appellants preferred an
appeal against the order of conviction and
sentence passed by the trial court. The High
Court while dismissing their appeals
clarified that their conviction were on six
846 INDIAN LAW REPORTS ALLAHABAD SERIES
counts and altered the fine awarded under
Section302/149IPCfrom Rs. 200/- to
Rs. 5,000/- in respect of each appellant per
count, i.e., Rs. 30,000/- per appellant.
Being aggrieved by the enhancement of
fine the appellant preferred their appeal
before this Court on the question of
enhancement
only.
While
discussing
Sections374and401CrPCthis
Court observed that on a co-joint reading of
Section 377, 386, 397 and 401, if the State
is aggrieved about the inadequacy of the
sentence, it can prefer an appeal under
Section377 (1)CrPC. The failure on the
part of the State to prefer an appeal does
not, however, preclude the High Court
from
exercisingsuo
motupower
of
revision under Section397read with
Section401CrPCsince the High Court
itself is empowered to call for the record of
the proceeding of any court subordinate to
it. Sub-section (4) of Section 401 operates
as a bar to the party which has a right to
prefer an appeal but has failed to do so but
that sub-section cannot stand in the way of
the High Court exercising revisional
jurisdictionsuo motu. But before the High
Court exercises itssuo moturevisional
jurisdiction to enhance the sentence, it is
imperative that the convict is put on notice
and is given an opportunity of being heard
on the question of sentence wither in
person or through his advocate. The
revisional jurisdiction cannot be exercised
to the prejudice of the convict without
putting him on guard that it is proposed to
enhance the sentence imposed by the trial
court. Discussing the facts of the said case,
it was noted that the accused convict had
filed their appeals, while no appeal had
been filed by the state against the sentence
awarded by the trial court on the ground of
its
inadequacyvis--
visSection302/149IPCnor did the
High Court exercisesuo moturevisional
powers under Section397read with
Section401CrPC. If the High Court
intended to enhance the sentence the proper
course was to exercisesuo motupowers
under
Section397read
with
Section401CrPCby issuing notice of
enhancement and hearing the convicts on
the question of inadequacy of sentence.
Without following such procedure, it was
not open to the High Court in the appeal
filed by the convicts to enhance the
sentence by enhancing fine as this would be
without jurisdiction. On this ground the
appeals were allowed and the enhanced
fine imposed by the High Court set aside
and fine imposed by the trial court was
restored and direction was issued to refund
the additional fine, if paid.

 22.2.InGovind
Ramji
Jadhavv.State of Maharashtra,(1990)
4 SCC 718(Govind Ramji Jadhav),
the question was whether the High Court
had jurisdiction to enhance the sentence
without issuing notice and affording to the
appellant an opportunity of showing cause
against such enhancement of the sentence
in the absence of an appeal by the State for
enhancement of sentence on the ground of
inadequacy. The appellant therein had
preferred criminal appeal against the
conviction and sentence before the Bombay
High Court, Aurangabad Bench. The High
Court neither issued notice to the appellant
therein nor afforded him any opportunity of
showing
cause
against
the
said
enhancement while enhancing the sentence.
There was no appeal for the said
enhancement
of
sentence
under
Section377CrPCon the ground of its
inadequacy. It was observed that the High
Court enjoys the power of enhancing the
sentence either in exercise of its revisional
jurisdiction under Section 397 read with
Section 401 or its appellate jurisdiction
10 All. Maiyya Deen Vs. State of U.P.
847
under
Section377read
with
Section386(c)CrPCsubject to proviso
(1) and (2) to Section 386. That while
exercising its revisional jurisdiction under
Section397read
with
Section401CrPCfor enhancement of
sentence, opportunity must be provided to
the accused.
 Referring to certain judgments of
this
Court,
it
was
observed
that
Section386CrPCdeals
with
the
powers of the appellate court in disposing
of an appeal preferred under Section 374
and also in case of an appeal under
Sections 377 or378CrPC. Under clause
(c)(iii)
of
Section386CrPC,
the
appellate court may in an appeal for
enhancement of sentence 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. That in both the above situations, for
the power of enhancement of the sentence,
the accused must be given a reasonable
opportunity
to
showing
cause
as
contemplated under the first proviso to
Section 386 as well under sub-section (3)
of Section377CrPC. Rules of natural
justice would mandate issuance of notice to
the appellant and affording an opportunity
to be heard on the proposed action for
enhancement of sentence. Applying the
aforesaid principle to the facts of the said
case, it was observed that enhancement of
sentence from three years to seven years for
the
conviction
under
Section201IPCwas
impermissible.
Consequently, this Court set aside the High
Court's order enhancing the sentence and
restored the order of the trial court
imposing the sentence of three years
rigorous imprisonment and the fine of Rs.
2500/- with the default clause.
 22.3.InState
of
Himachal
Pradeshv.Nirmala Devi,(2017) 7 SCC
262, the issue was whether the High Court
in
its
appellate
jurisdiction
under
Section386CrPCcould have set-aside
the sentence of imprisonment as imposed
by
the
trial
court
under
Sections328,392and307IPCby
enhancing the amount of fine to Rs.
30000/- from the fine of Rs. 2000/- as
ordered by the trial court. There were two
concurring opinions expressed through Dr.
A.K. Sikri and Ashok Bhushan, JJ.

 22.3.1.Ashok Bhushan, J. while
observing that in the said case the High
Court had not altered the finding of guilt
and only altered the sentence, considered
the meaning and content of the statutory
scheme as delineated by the words
altered the nature or the extent of the
sentence, but not so as to enhance the
same. The question therein was whether,
while altering the sentence, the High Court
is empowered to alter the sentence to an
extent which could not have been awarded
by the trial court after recording the finding
of guilt. It was found that the High Court
by its judgment had punished the accused
only with fine after affirming the finding of
guilt recorded, whereas the trial court after
holding the accused guilty had sentenced
him with rigorous imprisonment of two
years with a fine of Rs. 2000/- and in
default
of
payment,
further
simple
imprisonment for a period of three months
for
each
of
the
offences
under
Sections307,328and392IPC. The
question was, whether, the High Court
could have imposed a sentence only of a
fine or it was incumbent on High Court to
impose imprisonment as well as fine. After
referring to a number of judgments, Ashok
Bhushan, J. observed that the punishment
provided in the aforesaid sections which
contains the imprisonmentandfine has
to be read to mean that upon the offence
848 INDIAN LAW REPORTS ALLAHABAD SERIES
being
proved
under
Sections397,329and392IPC,
the
punishment of imprisonment and fine are
imperative.

 22.3.2.The
trial
court
had
awarded
sentence
of
two
years'
imprisonment with fine of Rs. 2000/- for
each of the aforesaid offences. Thus, it was
held that, for the said offences, the
punishment of only fine was incorrect as
imprisonment is an imperative part of the
punishment. It was observed that while
exercising
jurisdiction
under
Section386(b)(iii)CrPC, the appellate
court
cannot
alter
the
sentence
of
imprisonment and fine into a sentence only
of fine which shall be contrary to the
statutory scheme. This would be unfair and
unjust.
Therefore,
setting-aside
the
sentence of punishment of imposing only
fine by the High Court, the appeal filed by
the State was allowed. The judgment of the
High Court was set-aside and the judgment
and sentence awarded by the trial court was
restored. The respondent therein was
directed to be taken into custody to serve
the sentence as imposed by the trial court.

 22.4.InKumar Ghimrey, the
appellant therein assailed the judgment of
the Sikkim High Court dismissing his
criminal appeal questioning the order of
conviction and sentence passed by the
Special
Judge
(POCSO
Act,
2012)
convicting the appellant therein under
Sections 9/10 of the said Act and
Section341IPC. The appellant therein
was
sentenced
to
undergo
simple
imprisonment for a period of seven years
and to pay a fine of Rs. 50,000/- under
Sections9/10of
thePOCSO
Act,
2012and under Section341IPCthe
appellant was sentenced to undergo simple
imprisonment for one month by the Special
Court. Aggrieved by the judgment of the
Special Court, the accused filed an appeal
before the High Court. The High Court
dismissed the appeal and the sentence
under
Sections9/10of
thePOCSO
Actwas converted into a sentence under
Section5(m)of thePOCSO Actread
with Section 6 of the said Act and the
sentence was enhanced from seven years to
ten years with a fine of Rs. 5000/-.

 22.4.1.Challenging
the
enhancement of punishment even when
there was no appeal filed seeking such an
enhancement and contending that the High
Court ought not to have enhanced the
sentence, the appellant therein filed the
appeal before this Court. While analyzing
Section386(b)CrPC, which deals with
an appeal from conviction, this Court noted
that the High Court had enhanced the
sentence in the appeal filed by the accused
challenging his conviction. It was observed
by this Court that the High Court has
generally the power to enhance the
sentence in an appropriate case. The High
Court can also exercise its powers under
Section401CrPCwhich deals with the
power of revision of the High Court in an
appropriate case. The High Court under
Section401CrPCcan exercise any of
the powers conferred on a Court of Appeal
by Sections 386, 390, 391 or a Court of
Session by Section307CrPC. It was
observed that the High Court under Section
386(c) could have enhanced the sentence
but the said course is permissible only after
giving notice of enhancement. The power
of the High Court has been accepted and
reiterated by this Court in a large number
of cases.

 22.4.2.In this regard, reference
was made toSurjit Singhv.State of
Punjab,1984 Supp SCC 518;Govind
10 All. Maiyya Deen Vs. State of U.P.
849
Ramji
JadhavandSurendra
Singh
Routelav.State of Bihar,(2002) 1 SCC
266. While discussing these cases, this
Court observed that the High Court had
rightly affirmed the conviction of the
appellant therein. On the facts of the said
case, this Court refused to reduce the
sentence from seven years to five years as
sought by the accused. However, it setaside the direction of the High Court
insofar as it enhanced the sentence from
seven
years
to
ten
years
rigorous
imprisonment and the sentence awarded by
the Special Judge i.e. seven years under
thePOCSO Actand one month under
Section 341 was maintained.

 22.4.3.We find that the above
judgment was a case of enhancement of
sentence by the High Court in an appeal
filed by the accused and this Court by its
judgment maintained the sentence of seven
years imposed by the Special Judge while
setting aside the direction of the High Court
insofar as it enhanced the sentence from
seven
years
to
ten
years
rigorous
imprisonment. This Court observed that the
High Court enhancing the sentence from
seven years to ten years was not in
accordance with the procedure prescribed.

 23.The
question
for
consideration in this case is, whether, in an
appeal against conviction, the appellate
court could have directed enhancement of
the sentence in an appeal filed by the
accused.
Under
clause
(b)
of
Section386CrPC, firstly, the appellate
court can no doubt alter the findings and
sentence and acquit or discharge the
accused or order him to be retried by a
Court of competent jurisdiction subordinate
to such appellate court or committed for
trial. Secondly, the appellate court can also
alter the findings but maintain the sentence.
Thirdly, the appellate court can, in an
appeal from a conviction, with or without
altering the finding, alter the nature or the
extent, or the nature and extent, of the
sentence but not so as to enhance the same.
A plain reading of this would imply that in
an appeal against conviction which is
obviously filed by the accused, the
challenge could be two-fold:firstly, it
could be against the conviction itself in
which case there is a challenge to the
sentence also; andsecondly, the challenge
could be only to the sentence while
accepting the conviction. In other words,
the challenge would also be only for
reduction of the sentence. The question is,
whether, in an appeal challenging the
conviction and sentence, the appellate court
could, while affirming the conviction
enhance the sentence imposed by the trial
court by directing that the same had to be
with reference to other statutory provisions.
There is no doubt that the appellate court
while maintaining the conviction can
reduce the sentence and grant partial relief
to an accused. But in an appeal filed by the
appellant-accused, can the appellate court
not only affirm the conviction but go a step
further and seek to enhance the sentence
than what had been imposed by the trial
court. It cannot be lost sight of that in an
appeal filed by the accused, the appellantaccused is, at best, seeking a reversal of the
conviction as well as setting aside of the
sentence and the least that the appellantaccused can expect is even while the
conviction is affirmed, the sentence could
be maintained, if not reduced.

 24.Thus, in an appeal filed by
the appellant-accused against the judgment
of the conviction and sentence, can the
accused be left worse-off while the
conviction is affirmed by the appellate
court exercising appellate jurisdiction by
850 INDIAN LAW REPORTS ALLAHABAD SERIES
enhancing the sentence? In such an event,
the appellant-accused would be better off,
if he either withdraws his appeal or, not to
file an appeal at all !

 25.An
appeal
by
an
accused/convict is not only a valuable
statutory right but also a constitutional right
in criminal cases. InAR Antulayv.RS
Nayak,(1988) 2 SCC 602:AIR 1988
SC 1531, (Antulay), the majority of a
seven-Judge Bench (5:2) observed that the
creation of a right to an appeal is an act
which requires legislative authority, neither
an inferior court nor the superior court nor
both combined can create such a right, it
being one of limitation and extension of
jurisdiction. In the said case, it was
observed that the withdrawal of the trial
under progress before a trial court and its
transfer to a Special Court of the High
Court resulted in the appellant therein
losing his right of appeal. That a right of
appeal is an invaluable right, particularly,
for an accused who cannot be condemned
eternally by a trial judge, without having a
right to seek a re-look of the trial court's
judgment by a superior or appellate court.
 26.The right to prefer an appeal
is not only a statutory right but also a
constitutional right in the case of an
accused because an accused has a right to
not only challenge a judgment on its merits,
namely, with respect to the conviction and
sentence being imposed on him but also on
the procedural aspects of the trial. An
accused can also question procedural flaws,
impropriety and lapses that may have been
committed by the trial court in arriving at
the judgment of conviction and imposition
of sentence in an appeal filed against the
same.

 It then becomes the duty of the
appellate court to consider the appeal from
the perspective of the accused-appellant to
see if he has a good case on merits and to
set aside the judgment of the trial court and
acquit the accused or to remand the matter
for a re-trial in accordance with law or
reduce the sentence while maintaining the
conviction or, in the alternative, to dismiss
the appeal.

 27.In our considered view, the
appellate court, in an appeal filed by the
accused cannot, while maintaining the
conviction, enhance the sentence. While
exercising its appellate jurisdiction at the
instance of the convict, the High Court
cannot
act
as
a
revisional
court,
particularly, when no appeal or revision has
been filed either by the State, victim or
complainant for seeking enhancement of
sentence against accused.

 27.1.While we have analysed
Section386CrPCwhich deals with the
right of a party including an accused to file
an
appeal,
we
may
peruse
Section401CrPCwhich deals with the
revisional powers of the High Court which
is extracted as under:

 401.