Last week, the Supreme court held that ex parte enhancement of sentence is against the statutory mandate of the law as delineated in the conjoint reading of Section 401(1) and first proviso to Section 386 of the Code of Criminal Procedure, 1973.
"These sections adumbrate an opportunity of showing cause before enhancement of sentence in criminal revision. This opportunity, as held in Govind Ramji Jadhav v. State of Maharashtra, mandates that the High Court should give the accused a reasonable opportunity of showing cause", added the Court.
A bench of Justices made these observations while hearing an appeal against an order passed by the Madras High Court enhancing the sentences imposed on the appellants for offences under Sections 341, 294(b), 506(ii) and 447 of the Indian Penal Code.
The Court noticed that the appellants though were served notice, no legal representation was made on their behalf.
"In such a situation, the High court ought to have appointed an Amicus Curiae in the absence of counsel as observed by this Court in Parveen v. State of Haryana...", further said the Court.
In the instant case, the order of sentence passed by the Court of Principal Sessions Judge, Vellore District in 2006 was challenged by the victim/revision petitioner before the Madras High Court in 2013.
The delay was condoned by the High Court and the revision petition remained pending and had come up for hearing after almost five years on October 24, 2018, when the impugned order was passed.
It was thus noted by the top court that although notice was served to the appellants and their names were printed in the cause list but there was no representation on their behalf.
"Be that as it may, it is apparent that it is only the counsel for the petitioner and the State were heard. The court did not have the benefit of the arguments on behalf of the Appellants. In the given fact, in our opinion, the High Court was wrong in not appointing an Amicus Curiae", it held.
With this view, while quashing the High Court's enhancement order, the case has been remanded to the High Court to decide the revision petition afresh and in accordance with law.
Cause Title: KRISHNAN & ANR. v. STATE BY THE DEPUTY SUPERINTENDENT OF POLICE & ANR.
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