# Sachin v. State of Maharashtra

- **Citation:** 2025 INSC 716
- **Court:** Supreme Court of India
- **Decided:** 2025-04-21
- **Bench:** B.V. Nagarathna, Satish Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sachin-v-state-of-maharashtra-38499
- **Pages:** 36

## Headnote

Issue arose whether, the High Court could enhance the sentence
under its revisional powers in a convict's appeal against
conviction.
Headnotes†
Code of Criminal Procedure, 1973 - s.386 - Powers of the
Appellate Court to enhance sentence in appeal against
conviction - Conviction of the appellant for the offences
punishable u/ss.3(a) and 4 of the POCSO Act and s.376 IPC
for committing penetrative sexual assault on the minor victim,
and sentenced to rigorous imprisonment for seven years and
fine by the Special Court - Appeal against conviction by the
appellant - High Court affirmed the finding of the Special Court
as regards the commission of offence, however observed that
the Special Court while convicting the appellant, overlooked
the provisions of ss.5(m) and 6 of the POCSO Act and s.376(2)(i)
IPC - High Court issued show cause notice to the appellant on
enhancement of sentence and remitted the case to the Special
Court for reconsidering the quantum of the sentence - Special
Court convicted the appellant u/ss.5(m) and 6 of the POCSO
Act to suffer life imprisonment and fine and also convicted for
offence punishable u/ss.376(2)(i) IPC for which no separate
sentence is provided - In appeal, the Division Bench of the
High Court expressed its inability to proceed in the matter and
instead suggested the High Court Legal Services take steps
to restore justice to the appellant - Correctness:
Held: Appellate court, in an appeal filed by the accused cannot,
while maintaining the conviction, enhance the sentence - While
* Author
[2025] 4 S.C.R.
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Sachin v. State of Maharashtra
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 -
In an appeal filed by the accused/convict, the High Court cannot suo
motu exercise its revisional jurisdiction and enhance the sentence
against the accused while maintaining the conviction - Power to
enhance the sentence can be exercised by the appellate court only
in an appeal filed by the State, victim or complainant provided the
accused has had an opportunity of showing cause against such
enhancement - 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 of sentence under appeal - Thus, even in an appeal for
enhancement of sentence, unless the conditions prescribed in the
form of provisos are complied with by the appellate court, there
cannot be an enhancement of sentence - No appellant by filing
an appeal can be worse-off than what he was - In an appeal filed
by an accused against a judgment of conviction and sentence, he
cannot be remitted to the trial court to impose a higher sentence on
him - Single Judge of the High Court was not right in remanding
the matter to the Special Court for enhancing the sentence to be
imposed on the appellant-accused, that too, in an appeal filed by
accused seeking setting aside of a judgment of conviction and
sentence imposed on him - Consequently, the Special Court not
right in enhancing the sentence to life imprisonment by following the
said direction - Appellant while initially subjected to imprisonment
of seven years, has completed actual sentence of eleven years
and eight months - Orders of the High Court and consequently
of the Special Court erroneous and liable to be set aside - To do
the complete justice in exercise of powers u/Art.142, the original
sentence of seven years of rigorous imprisonment imposed on the
appellant restored - Instead of rehearing his appeal on the original
sentence, the matter is concluded and the appellant is released
from jail forthwith - Protection of Children from Sexual Offences
Act, 2012 - ss.3(a), 4, 5(m), 6 - Penal Code, 1860 - ss.363-A,
376. [Paras 23, 26, 27, 29.1, 31-33, 34.4

## Text

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[2025] 4 S.C.R. 2500 : 2025 INSC 716
Sachin
v.
State of Maharashtra
(Criminal Appeal No(s). 2073-2075 of 2025)
21 April 2025
[B.V. Nagarathna* and Satish Chandra Sharma, JJ.]
Issue for Consideration
Issue arose whether, the High Court could enhance the sentence
under its revisional powers in a convict's appeal against
conviction.
Headnotes†
Code of Criminal Procedure, 1973 - s.386 - Powers of the
Appellate Court to enhance sentence in appeal against
conviction - Conviction of the appellant for the offences
punishable u/ss.3(a) and 4 of the POCSO Act and s.376 IPC
for committing penetrative sexual assault on the minor victim,
and sentenced to rigorous imprisonment for seven years and
fine by the Special Court - Appeal against conviction by the
appellant - High Court affirmed the finding of the Special Court
as regards the commission of offence, however observed that
the Special Court while convicting the appellant, overlooked
the provisions of ss.5(m) and 6 of the POCSO Act and s.376(2)(i)
IPC - High Court issued show cause notice to the appellant on
enhancement of sentence and remitted the case to the Special
Court for reconsidering the quantum of the sentence - Special
Court convicted the appellant u/ss.5(m) and 6 of the POCSO
Act to suffer life imprisonment and fine and also convicted for
offence punishable u/ss.376(2)(i) IPC for which no separate
sentence is provided - In appeal, the Division Bench of the
High Court expressed its inability to proceed in the matter and
instead suggested the High Court Legal Services take steps
to restore justice to the appellant - Correctness:
Held: Appellate court, in an appeal filed by the accused cannot,
while maintaining the conviction, enhance the sentence - While
* Author
[2025] 4 S.C.R.
2501
Sachin v. State of Maharashtra
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 -
In an appeal filed by the accused/convict, the High Court cannot suo
motu exercise its revisional jurisdiction and enhance the sentence
against the accused while maintaining the conviction - Power to
enhance the sentence can be exercised by the appellate court only
in an appeal filed by the State, victim or complainant provided the
accused has had an opportunity of showing cause against such
enhancement - 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 of sentence under appeal - Thus, even in an appeal for
enhancement of sentence, unless the conditions prescribed in the
form of provisos are complied with by the appellate court, there
cannot be an enhancement of sentence - No appellant by filing
an appeal can be worse-off than what he was - In an appeal filed
by an accused against a judgment of conviction and sentence, he
cannot be remitted to the trial court to impose a higher sentence on
him - Single Judge of the High Court was not right in remanding
the matter to the Special Court for enhancing the sentence to be
imposed on the appellant-accused, that too, in an appeal filed by
accused seeking setting aside of a judgment of conviction and
sentence imposed on him - Consequently, the Special Court not
right in enhancing the sentence to life imprisonment by following the
said direction - Appellant while initially subjected to imprisonment
of seven years, has completed actual sentence of eleven years
and eight months - Orders of the High Court and consequently
of the Special Court erroneous and liable to be set aside - To do
the complete justice in exercise of powers u/Art.142, the original
sentence of seven years of rigorous imprisonment imposed on the
appellant restored - Instead of rehearing his appeal on the original
sentence, the matter is concluded and the appellant is released
from jail forthwith - Protection of Children from Sexual Offences
Act, 2012 - ss.3(a), 4, 5(m), 6 - Penal Code, 1860 - ss.363-A,
376. [Paras 23, 26, 27, 29.1, 31-33, 34.4-37]
Jurisdiction - Appellate jurisdiction and revisional jurisdiction -
Difference between:
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[2025] 4 S.C.R.
Supreme Court Reports
Held: Ordinarily, appellate jurisdiction involves a rehearing, as it
were, on law as well as on facts and is invoked by an aggrieved
person - Ordinarily, revisional jurisdiction is analogous to a power
of superintendence and may sometimes be exercised even without
it being invoked by a party - Extent of revisional jurisdiction is
defined by the statute conferring such jurisdiction - Conferment
of revisional jurisdiction is generally for the purpose of keeping
tribunals subordinate to the revising tribunal within the bounds
of their authority to make them act according to the procedure
established by law and according to well defined principles of
justice. [Paras 28, 28.4]
Case Law Cited
Kumar Ghimrey v. State of Sikkim [2019] 6 SCR 203 : (2019) 6
SCC 166; Nadir Khan v. State (Delhi Admn.) [1975] Supp. 1 SCR
489 : (1975) 2 SCC 406; Eknath Shankarrao Mukkawar v. State of
Maharashtra [1977] 3 SCR 513 : (1977) 3 SCC 25; Sahab Singh v.
State of Haryana [1990] 1 SCR 512 : AIR 1990 SC 1188; Govind
Ramji Jadhav v. State of Maharashtra [1990] 1 SCR 855 : (1990)
4 SCC 718; State of Himachal Pradesh v. Nirmala Devi [2017]
2 SCR 112 : (2017) 7 SCC 262; Surjit Singh v. State of Punjab,
1984 Supp. SCC 518; Govind Ramji Jadhav and Surendra Singh
Routela v. State of Bihar [2001] Supp. 5 SCR 340 : (2002) 1 SCC
266; AR Antulay v. RS Nayak [1988] Supp. 1 SCR 1 : AIR 1988
SC 1531; James Joseph v. State of Kerala [2010] 10 SCR 844 :
(2010) 9 SCC 642, para 19(i); Bolin Chetia v. Jagdish Bhuyan
[2005] 2 SCR 692 : AIR 2005 SC 1872 : (2005) 6 SCC 81; State
of Kerala v. Charia Abdulla & Co. [1965] SCR 601 : AIR 1965 SC
1585; Sri Raja Lakshmi Dyeing Works v. Rangaswamy (1980) 4
SCC 259 - referred to.
Chautala Workers Co-op Transport Society Ltd. v. State of Punjab,
AIR 1962 Punj 94 - referred to.
Attorney General v. Herman James Sillem (1864) 10 HLC
704 - referred to.
Books and Periodicals Cited
Black's Law Dictionary, Ninth Edition; P Ramanatha Aiyar, Advanced
Law Lexicon, 6th Edition, Volume-1; P Ramanatha Aiyar's
Advanced Law Lexicon, 6th Edition, Volume 4 - referred to.
[2025] 4 S.C.R.
2503
Sachin v. State of Maharashtra
List of Acts
Code of Criminal Procedure, 1973; Protection of Children from
Sexual Offences Act, 2012; Penal Code, 1860; Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
List of Keywords
Enhancement of sentence; Revisional powers; Appeal against
conviction; Powers of the Appellate Court; Penetrative sexual
assault on minor victim; Special Court; Show cause notice; Quantum
of sentence; High Court Legal Services; Opportunity of hearing;
Retrial; Appellate jurisdiction; Revisional jurisdiction; Incarceration.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
2073-2075 of 2025
From the Judgment and Order dated 26.02.2016 in CRLA No.
30 of 2015, 08.03.2016 in CRLA No. 30 of 2015 and 28.04.2016
in CN No. 05 of 2013 passed by the Special Judge, Warora, in
Special (POCSO) Case No. 05 of 2013
Appearances for Parties
Advs. for the Appellant:
Ms. Sangeeta Kumar, Mrs. Vithika Garg, Ms. Vidushi Garg, Hemant
Kumar Tripathi.
Advs. for the Respondent:
Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha
Pande.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
Leave granted.
2.
This is an unfortunate case where the appellant herein, instead of
suffering a sentence of rigorous imprisonment for seven years has
been incarcerated for eleven years simply owing to the fact that
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[2025] 4 S.C.R.
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Criminal Appeal No.30/2015 preferred by him before the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur, the matter was
remitted to the Special Court for enhancement of sentence without
even adhering to the salient principles of natural justice.
3.
The appellant herein faced trial pursuant to FIR No. 154/2013
registered with P.S. Bhadrawati District, State of Maharashtra under
Sections 3(a) and 4 of the Protection of Children from Sexual Offences
Act, 2012 (for short, "POCSO Act") and Section 363-A, 376 of the
Indian Penal Code, 1860 (for short, "IPC") and Sections 3(1)(xii) and
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act. Charges were framed against the appellant under
the aforesaid sections.
4.
The case of the prosecution is that the appellant was a neighbour of
the family of the minor victim, aged four years. On 15.09.2013, while
the father of the minor victim was away for work and the mother had
gone out for cooking, the appellant induced the minor victim to his
house, undressed her and committed the offence of rape on her. Two
independent witnesses residing in the same neighbourhood informed
the minor victim's mother about the incident. Later, the minor victim
narrated the incident to the complainant who took his daughter to a
doctor. After gathering courage, the complainant registered Crime
No.154/2013 on 23.09.2023 under the aforesaid provisions.
5.
By judgment dated 24.11.2014, the Special Judge, Warora, concluded
that the prosecution had proved that the accused had committed
penetrative sexual assault on the minor victim. Thereby, the Special
Court convicted the appellant herein for the offences punishable
under Sections 3(a) and 4 of the POCSO Act and Section 376 of
IPC. Consequently, the appellant was sentenced to suffer rigorous
imprisonment for seven years and to pay fine of Rs.2,000/- and in
default to undergo rigorous imprisonment for two months. As offence
under Section 376 IPC was merged in the aforesaid offences, no
separate punishment was awarded by the Special Court.
6.
Aggrieved by his conviction and sentence, the accused-appellant
herein preferred Criminal Appeal No.30/2015 before the High Court.
It is pertinent to note that the State had not assailed by way of
an appeal the sentence of rigorous imprisonment for seven years
imposed by the Special Court on the appellant herein. Neither was
any appeal filed by the complainant or on behalf of the victim.
[2025] 4 S.C.R.
2505
Sachin v. State of Maharashtra
7.
On the other hand, the appellant - accused assailed the judgment
of conviction and sentence before the High Court. By impugned
judgment dated 26.02.2016, the High Court affirmed the finding of
the Special Court to the effect that the victim was present in the
house of the accused at the time of incident and there was no one
else in the house except the accused and the victim. Pertinently,
the High Court was of the view that this exceptional fact had not
been sufficiently explained by the appellant. Relying on the evidence
of Dr. Dipti Vinay Shrirame (P.W.6) and the medical examination
report of the victim issued by the General Hospital, Chandrapur,
the High Court concluded that the fact of penetrative sexual assault
was proved beyond reasonable doubt. Also, as per Section 29 of
POCSO Act, the appellant was found to have failed to discharge
the burden of explaining the presence of the victim in his house and
the medical evidence which proved the commission of penetrative
sexual assault.
8.
Section 3 of POCSO Act defines when a person is said to commit
penetrative sexual assault and Section 4 prescribes the punishment
for the same. Prior to its amendment, Section 4 provided for
imprisonment of either description for a term which shall not be
less than seven years but which may extend to imprisonment for
life and shall also be liable to fine. The Section has been amended
with effect from 16.08.2016.
9.
A comparison of aforesaid sections with Sections 5 and 6 of POCSO
Act, is necessary. Section 5 provides when an accused is said to
commit 'aggravated penetrative sexual assault'. In particular, Section
5(m) provides that whoever commits penetrative sexual assault on
a child below twelve years is said to commit aggravated penetrative
sexual assault. At the time of commission of offence in the instant
case, Section 6 enumerated punishment of rigorous imprisonment for
a term not less than ten years but which may extend to imprisonment
for life and shall also be liable to fine. The aforesaid Sections read
as under:
"3. Penetrative sexual assault.-A person is said to
commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child
to do so with him or any other person; or
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[2025] 4 S.C.R.
Supreme Court Reports
(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of the child or makes the child to do so with
him or any other person; or
(c)
he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus
or any part of body of the child or makes the child to
do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to
such person or any other person.
4. Punishment for penetrative sexual assault.-(1)
Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be
liable to fine.
xxx
5. Aggravated penetrative sexual assault.-
xxx
(m) whoever commits penetrative sexual assault on a child
below twelve years; or
xxx
is said to commit aggravated penetrative sexual assault.
6. Punishment for aggravated penetrative sexual
assault.-(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of natural life of
that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just
and reasonable and paid to the victim to meet the medical
expenses and rehabilitation of such victim."
[2025] 4 S.C.R.
2507
Sachin v. State of Maharashtra
10. It is an undisputed fact that the minor victim was four years of age
at the time of commission of the offences. In this context, the High
Court observed that the Special Court in convicting the appellant under
Sections 3(a) and 4 of POCSO Act had overlooked the provisions
of Sections 5(m) and 6 of POCSO Act as well as Section 376(2)(i)
of the IPC. Finally, the High Court held that the appellant herein is
liable for punishment under Section 6 of the POCSO Act and under
Section 376(2)(i) of IPC. While maintaining the findings recorded by
the Special Court that the appellant indeed committed penetrative
sexual assault on the victim, the High Court issued show cause
notice to the appellant as to why he should not be sentenced as
per Section 6 of the POCSO Act and for the offence under Section
376(2)(i) of IPC. Considering the minimum statutory punishment, it
is apparent that sentencing under Section 6 of POCSO Act would
inevitably result in enhancement of sentence by at least three years.
11. The contention raised by learned counsel for the appellant herein
before the High Court was that such a course was impermissible in
law as it would amount to altering/modifying the charge was to be
considered on the next date. The appeal was listed before the High
Court on 02.03.2016 for further hearing on the point of sentencing
and the appellant was also directed to be produced before the Court.
On 02.03.2016, the appellant was produced before the High Court
and was made aware about the issuance of notice regarding hearing
on enhancement of sentence. What appears is that despite the
judgment of the High Court dated 26.02.2016, the appellant was made
aware of the issuance of show cause notice only for enhancement
of sentence on 02.03.2016. Subsequently, on 08.03.2016, the High
Court passed the order and reiterated that appellant is liable to be
punished under Section 6 of the POCSO Act and Section 376(2)(i)
of IPC, both provisions having been overlooked by the Special Court
and finally remitted the case to the Special Court for reconsidering
the quantum of the sentence to be imposed on the appellant by
way of enhancement for the offences said to have committed by
the appellant.
12. Consequently, the Special Court vide order dated 28.04.2016
sentenced the appellant to life imprisonment and to pay fine of
Rs. 5000/-, in default to undergo further rigorous imprisonment for
six months.
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[2025] 4 S.C.R.
Supreme Court Reports
13. Aggrieved by the enhancement of sentence in pursuance of his own
appeal, the appellant herein preferred Criminal Appeal No.311/2021
before the Division Bench of the High Court by assailing order dated
28.04.2016 which obviously expressed its inability to proceed in the
matter and instead suggested that the High Court Legal Services
Sub-Committee, Nagpur take steps to restore justice to the appellant
herein.
14. It is in the above circumstances, that we have heard learned counsel
Ms. Sangeeta Kumar appearing on behalf of the Supreme Court
Legal Services Committee for the appellant - accused and Shri
Rang Verma, learned counsel for the respondent-State at length.
15. Ms. Kumar, learned counsel appearing for the appellant, contended
that in the absence of any appeal preferred by the State Government
or the complainant, the High Court grossly erred in enhancing the
sentence. The decision of the High Court has left the appellant
worse-off in his own appeal, it was argued.
16. Per contra, learned counsel appearing for the respondent-State
relied on the judgment of this Court in Kumar Ghimrey vs. State
of Sikkim, (2019) 6 SCC 166 ("Kumar Ghimrey") to buttress his
submission that the High Court, even in the absence of a State appeal,
is competent under Section 401 Code of Criminal Procedure, 1973
(for short, "CrPC") to exercise its powers under Section 396(c) and
enhance the sentence once appellant-accused's appeal was filed.
17. On that note, learned counsel appearing for the appellant vociferously
highlighted the grave injustice of prolonged incarceration has caused
to the appellant due to High Court not granting an effective opportunity
of hearing. It was contended that the Order dated 08.03.2016 does
not reflect that the counsel for the appellant-accused or the accused
himself was actually 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.
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.
[2025] 4 S.C.R.
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Sachin v. State of Maharashtra
19. Section 386 CrPC discusses 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:
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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."
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. Section 377 CrPC which provides for appeal by the State Government
against inadequacy of sentence was a novel provision brought in
by the CrPC. The 41st Law 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 In Nadir Khan vs. 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 Section
61(a) of the Punjab Excise Act, 1914 as 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 Section 482 CrPC read
with Article 227 of the Constitution against the conviction. In
turn, the High Court left the petitioner worse off as it thought
that the sentence awarded was inadequate. By suo moto
invoking 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 Section 401 CrPC, has the jurisdiction to
[2025] 4 S.C.R.
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Sachin v. State of Maharashtra
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
acting suo motu in 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 Section 377 CrPC
to appeal against inadequacy of sentence
which was not 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
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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
Section 401 read with Section 386(c)(iii)
CrPC are 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 In Eknath Shankarrao Mukkawar vs. State of Maharashtra,
(1977) 3 SCC 25 ("Eknath Shankarrao Mukkawar"), an
appeal was indeed preferred by the State Government under
Section 377(1) CrPC against the inadequacy of the sentence
of the appellant convicted under Section 16(1)(a)(i) read with
Sections 2(i)(1) and 7(i) of the Prevention of Food Adulteration
Act, 1954 and 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 Section 401 CrPC
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to enhance the sentence suo moto as the power of the High
Court to enhance sentence which was available under Sections
435/439 CrPC of the old CrPC is absolutely replaced by the
provision of appeal under Section 377 CrPC of the new CrPC.
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 new Code of Criminal Procedure, 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 Section 397 read with
Section 401 of the Criminal Procedure Code, 1973,
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 to suo moto enhance the
sentence under the CrPC by 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 Section 386 CrPC. 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
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of acquittal or for enhancement of sentence could be filed either by
the State or by the complainant or even by the victim under Section
378 CrPC and 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 Section 386
CrPC may be referred to at this stage.
22.1 In Sahab Singh vs. State of Haryana, 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 Section 148,
IPC;
(b) rigorous imprisonment for six months under Section
323/149, IPC; and
(c)
imprisonment for life and a fine of Rs. 200 under Section
302/149, 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 counts and altered the fine awarded
under Section 302/149 IPC from 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
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question of enhancement only. While discussing Sections 374
and 401 CrPC this 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 Section 377 (1) CrPC. The failure on the part of the
State to prefer an appeal does not, however, preclude the
High Court from exercising suo motu power of revision under
Section 397 read with Section 401 CrPC since 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 jurisdiction
suo motu. But before the High Court exercises its suo motu
revisional 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 inadequacy visà-vis Section 302/149 IPC nor did the High Court exercise suo
motu revisional powers under Section 397 read with Section
401 CrPC. If the High Court intended to enhance the sentence
the proper course was to exercise suo motu powers under
Section 397 read with Section 401 CrPC by 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 In Govind Ramji Jadhav vs. State of Maharashtra, (1990) 4
SCC 718 ("Govind Ramji Jadhav"), the question was whether
the High Court had jurisdiction to enhance the sentence without
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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
Section 377 CrPC on 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
under Section 377 read with Section 386(c) CrPC subject to
proviso (1) and (2) to Section 386. That while exercising its
revisional jurisdiction under Section 397 read with Section
401 CrPC for enhancement of sentence, opportunity must be
provided to the accused.
Referring to certain judgments of this Court, it was observed
that Section 386 CrPC deals 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 or 378
CrPC. Under clause (c)(iii) of Section 386 CrPC, 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 Section 377 CrPC. 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 Section 201 IPC was impermissible. Consequently,
this Court set aside the High Court's order enhancing the
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Sachin v. State of Maharashtra
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 In State of Himachal Pradesh vs. Nirmala Devi, (2017) 7
SCC 262, the issue was whether the High Court in its appellate
jurisdiction under Section 386 CrPC could have set-aside the
sentence of imprisonment as imposed by the trial court under
Sections 328, 392 and 307 IPC by 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 Sections
307, 328 and 392 IPC. 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 imprisonment and fine
has to be read to mean that upon the offence being
proved under Sections 397, 329 and 392 IPC, the
punishment of imprisonment and fine are imperative.
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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
Section 386(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 In Kumar 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 Section 341
IPC. 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 Sections 9/10 of the POCSO Act, 2012
and under Section 341 IPC the 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.