Under subsection (1) of section 401 ,the High Court can exercise powers
conferred on a court of appeal by section s 386/ 389/ 391 or on a court of
Session by section 307. The only rider is that where under Code ,an appeal lies
and no appeal is brought,no proceedings by way or revision shall be entertained
at the instance of the party who could have applied.
At this stage, it was necessary to read section s 377 and 386 of Crpc which deal
with the appeal against sentence and powers to be exercised in such an an appeal
. Section 377 provides that the State Government may in any case of conviction
on a Trial held by any Court other than a High Court present an appeal to the
High Court against the sentence on the ground of its inadequacy.
Clause (c) of section 386 further empowers the High Court to alter a sentence
with or without altering the finding of guilt. so as to enhance or reduce the
same. This very power of the High Court under section 401 can with the sid of
section 399(1) be exercised by the Session Court.
As already pointed out ,no revision would lie at the instance of a party who
could have appealed . In the instant case no appeal against the sentence under
Section 377 can be presented by the State Government alone.
The prosecution in the instant case was launched by a private party not by the
State Government and there was thus no question of the State Government
preferring an appeal in the matter. Under the circumstances,the complainant
petitioner s were Fully empowered to prefer Revision against the sentences
either in High Court or in the Session Court ,as empowered by section s 397/
399/ and 402, Crpc.
The ASJ clearly misconstrued as aforesaid legal provisions in holding that no
revision against sentences lies lies in the Session Court. In fact an aggrieved
party has been given an option to choose one of the two forums for filling