It was a we'll settled position of Law that a conjoint reading of section s
377,386,397 and 401 would indicate that if the State Government about inadequacy
of sentence, it can prefer an appeal, u/s 377(1) of the Code. The failure on the
part of the State Government to prefer an appeal.
Does not however preclude the High Court From exercising Suo Motu power of
revision u/ s 397 read with section 401 of the Code as High court itself is
empowered to call for the record of proceedings of any court subordinate to it.
But before the High Court exercises it's Revisional jurisdiction to enhance the
It was imperative that the convict is put on notice and was given an opportunity
of being heard on the question of sentence, either in person or through the
advocate. The Revisioal Jurisdiction can not exercised to the prejudice of the
convict without putting him on guard that it was proposed to enhance the
sentences imposed by the trial court.
But the Session judge does not have any power to enhance the sentence because
the appeal was preferred before the court of session u/ s 374 of the Crpc.
U/ s 379 ,the High Court or any Session judge may call for and examine the
record of any proceedings before any subordinate Court situated within its local
jurisdiction for the purpose of satisfaction of itself as to the correctness,
legality and propriety of any findings, sentence or order recorded or passed and
as to the regularity of any proceedings of such Subordinate court. But Session
judge sitting in appeal u/ s 374 of Crpc, enhanced the sentence which is not
permissible under the Law and has to be quashed.
Sarwasti Devi vs State of Sikkim, 2001,Cri LJ, at 3922 ,3923.