BACHAN SINGH ETC.versusSTATE OF PUNJAB

                                                                              645

                             BACHAN SINGH ETC.·
                                             v.
                               STATE OF PUNJAB
                                September 14, 1979
                (V. R. KRISHNA IYER AND P. N. SHINGHAL, JJ.}                            B
4
        Crimi1U1l Procedure Code, 1973 (Act 1 of 1974), Sections 377, 401, Scope
    of-Hearing of an appeal against their conviction and sentence filed by the
    accused along ~·ith the State appeal against their conviction under section 302
    l.P.C. and a Revision Petition for enhancement of sentence-Their appeal
    itself, furnishes further opportunity to the accused to plead for their acquittal
    or reduction of sentence or to show cause against the enhancement of sen-           C
    fence.

          Against their conviction and sentence passed by the Sessions Judge,
     Gurdaspur, the appellants preferred an appeal to the High Court. The State
      filed an appeal for their ronviction and sentence under section 302 l.P.C.
      A revision petition was also filed under Section 401 Crl. P.C. for enhancement
      of the sentence of imprisonment tlnd fine "to meet the ends of justice".
      Though the High Court made an express order on December 9, 1974 that              D
      the revision petition would be heard along with the criminal appeal, tp.e High
      Court by its impugned judgment dated January .3, 1978, dismissed the appeal
      filed by the accused, but enhanced the sentence of Bachan Singh, Gurnam
      Singh and Chanan Singh accused under Section 304 Part I read with Sec-
      tion 149 I,P.C. to rigorous imprisonment for life and of accused Ravail Sipgh
      and Vir Singh under the same section to rigorous impriSonment for 10 years.
      While making that order, the High Court observed that the State appeal
                                                                                        E
       "for enhancement of punishment" was partly accepted, without reference to
      the revision petition. Hence the petition for special leave under Article 136
      of the Constitution on the ground that the High Court committed an error of
       Jaw in enhaJJcing the sentence of the accused without giving them a reason-
    . able opportunity of showing cause against such enhancement and without
       allowing them to plead for their acquittal or for reduction of the sentence
                                                                                        F
       as contemplated by sub-section (3) of section 377 of• the Code of Criminal
        Procedure.
        Dismissing the petition the Court,
         HEID:
         t. Tho revision petition under section 401 Crl. P.C. for enhancement of
     the /sentence was maintainable as it was not permissible for the revision          G
•    petition~r .to file an appeal under section 377. The High Court effectively
     disposed of both the appeals and the revision petition even though there was an
     inadvertent mistake in not making a reference to the revision petition in the
     judgment. [647 F-G, 648 BJ
          2. The opportunity for pleading for acquittal was amply furnished to the
       accused at the hearing of their own appeal against their conviction, and the
                                                                                        H
     · same appeal furnished them the necessary opportunity for pleading for
       tbelr 11cquittal or the reduction of the sentence. That, in fact, was the
       subject matter Qf their appeal. The fact that the appeal filed by the State
       5-625SCI/79
       646                  SUPREME COURT REPORTS                   [1910] 1 s.c.R.

                             I
A    against the acquittal of the accused under $CCtion 302 I.P.C. vrao lio&rd alang
     with their appeal against conviction and sentence, itself furnished an oppor-
     tunity to show cause against the enhancement of the sentence. ['48 C-D]
         3. (a) In the petition filed .under section 401 Cr!. P.C. for the cxcn:iso·
      of the High Court's power of revision, it was permissible for it to exeroi!e
     the power of a Court of appeal under settion 386 for enhancemeat of .the
B    sentence. [648 E-F)
            (b) It was also permissible for the High Court under Section 397
       Cr!. P.C., to call for and examine the record of the proceedinl!S before the
      trial court for purpose of satisfying itself as to the correctness, legality or
      "propriety" of any finding, "sen.ten~" or order reoorded or passed by that
      inferior Court. The High Court's power of revision under section 401 Crl. P .C.
      in the case of any proceeding the record of which has been ealled for by
c     it or which otherwise comes to its knowledge includes the power conferred
     on a court of appeal under section 386 to enhance or reduce the sentence.
      So when the record of the case was before the High Court in connection
     with the two appeals and the revision petition there was nothing to preVcnt
     the High Court from invoking its power under section 397 read with 401
     Cr!. P.C. and to make an order for the enhancement of the sentence.
     [648 F-H]
D
        aUMINAL APPELLATE JURISDICTION :               Special    Leave    Petition
     (Cr!.) No. 1383 of 1978.
       From the Judgment and Order dated 3-1-1978 of the Punjab and
    Haryana High Court in Crl A No. 1039 /74.
E      K. L. logga and L. N. Gupta for the Petitioner.
       Hardev Singh for the Respondent.
       The Order of the Court was delivered by .
        SHJNGHAL, J.- We have heard learned counsel for the parties at
    length.
F       Accused Bachan Singh, Gurnam Singh and Chanan Singh were
    convicted by the Sessions Judge of Gurdaspur of an offence under
    section 304 Part I read with section 149 I.P.C. and were sentenced
    to rigorous imprisonment for 10 years and a fine of Rs. 1000/-. They
    were also convicted of an offence under section 148 1.1'.C. and sen-
    tenced to rigorous · imprisonment for 2 years. The remaining two
G   accused Ravail Singh and Vir Singh were convicted of an offence .under
    section 304 Part I read with section 149 I.P .C., but they Were sen-
    tenced to rigorous imprisonment for 5 years and a fine of Rs. 500 /-.
    Further, they were convicted of an offence under section 147 I.P.C.
    and were sentenced to rigorous imprisonment for 1 year. -
B       An appeal was filed by the accused agajnst their conviction and
    sentence; and the State filed ari appeal for their conviction and RD-
    tence under section 302 LP.C. A revision petition was filed under
                     BACHAN SINGH v. PUNJAB      (Shinghal, J.)         UT

                                                                                    A
      section 401 Crl. P.C. for enhancement of the sentence of imprisOllJMAt
      and fine "to meet the ends of justice". The High Court of Pi:mja&
      and Haryana made an express order on December 9, 1974 that lite
       revision petition would be heard alongwith the criminal appeal (No.
       1039 of 1974) filed by the accused.
             By its impugned judgment dated January 3, 1978, the High Cowrt B
       dismissed the appeal which was filed by the accused, but enbu.ced
       the sentence of Bachan Singh, Gurnam Singh and Chanan Sinib
       accused under section 304 Part I read with section 149 I.P.C. to
       rigorous imprisonment for life and of accused Ravail Singh and Vir
       Singh under the same section to rigorous imprisonment for 10 years.
       While making that order, the High Court observed that the State              c
        appeal "for enhancement of punishment" was "partly accepted".
        That is why all the five accused have applied to this Court for special
        leave under article 136 of the Constitution.
             It bas been argued by learned counsel for the accused that the High
         Court committed an error of law in enhancing the sentence of the
                                                                                    D
         accused without giving them a· reasonable opportunity of showing
         cause against such enhancement and without allowing them to plead
         for their aCquittal or for re<luction of the sentence as contemplated
         by sub-section (3) of section 377 of the Code of Criminal Proce-
         dure.
              It appears to us, however, that as the State Government did not        E
_..      file an appeal against the sentence under sub-section ( 1) of section
 I
          377 Cr.P.C, and as it is not disputed before us that its appeal was
          directed against the acquittal of the accused for the offence under
          section 302 I.P.C., there is no justification for the ar!lllment that the
          High Court committed an illegality in not complying with the require-
          ment of sub-section (3) of that section for giving the opportunity to F
          the accused of showing cause against the enhancement of the sentence
          or of pleading for their acquittal ·or for reduction of the sen-
          tence.
               As has been stated, a petition was filed under section 401 Cr.P.C.
           for enhancement of the sentence, and it was clearly maintainable as it
           was not permissible for the revision petitioner to file an appeal under G
           section 377. It will be recalled that the High Court made an express
           order on December 9, 1974, for the hearing of the revision petition
           alongwith the appeal which had been filed by the accused.
             The fact therefore remains that the High Court had before it !he
         abovomentioned appeals which had been filed by the accused and the         H
         State, and the revision petition under section 401 Cr.P.C. for .enhance-
         ment of the sentence. While that court dismissed the appeal of the
       648                 SUPREME COURT REPORTS               [1980] 1 S.C.R.

 A    accused, and allowed the appeal of the State in part, it fqrgot to make
      a reference to the revision petition while drawing up the operative part
      of its order. That was an inadvertent mistake for, after reading the
      impugned judgment of the. High Court, we have no doubt that it
      effectively disposed of both the appeals and the revision petition even
      though the wordings of the judgment in that respect were not quite
 B appropriate.
          But, even otherwise, there is no merit in the grievance of the
      accused that they were not given the opportunity of showing cause
      against the enhancement of the sentence or to plead for their acquittal
    ·or for reduction of the sentence. The opportunity for pleading for
c     acquittal was amply furnished at the bearing of their own appeal
      against their conviction, and the same appeal furnished them the neces- ·
     sary opportunity for pleading for the reduction of the sentence. That
     in fact was the subject matter of their appeal.
          It is not disputed before us that the High Court heard the State
     appeal against the acquittal of the accused, alongwith the appeal which
J)    was filed by the accused, and that furnished further opportunity to
     the accused to plead for their acquittal, or reduction of sentence, or
     to show cause against the enhancement of the sentence. There is
     thus no force in the argument to the contrary. It has to be appre-
     ciated that in respect of the petition which was filed under section
   ' 401 Cr.P.C. for the exercise of the High Court's powers of revision,
E it was permissible for it to exercise the power of a Court C>f Appeal
     under section 3 86 for enhancement of the sentence, and if that bad
     been done, there is no justification for the argument · that the en-
     hancement was illegal.
         There is another reason for this view. It was permissible for the
     High Court under section 397 Cr.P .C. to call for and examine the ·
     record of the proceeding before the trial court fQf the purpose of
    gatisfying itself as to the correctness, legality or "propriety" of any
    finding, "sentence" or order, recorded or passed ,by that inferior
    court. The High Court's power of revision in the case of any pro-
    ceeding the record of which has been called for by it or which other-
G wise comes to its knowledge, has been stated in section 401 Cr.P.C.
    to which reference has been made above. That includes the power
    conferred on a Court of Appeal under section 386 to enhance or
    reduce the sentence. So when the record of the case was before
    the High Court in connection with the two appeals and the revision
   petition referred to above, there was ;nothing to prevent the High
D Court from invoking its powers under section 397 read With sectioo
   401 Cr.P.C. and to make an order for the enhancement of the
   sentence.
                      BACHAN SINGH v. PUNJAB       (Shinghal, J.)          ~49


         There is thus no force in the i argument to the contrary.                   A

            All the same, we gave an opportunity to the learned counsel for
       the accused to adva.nce his arguments on question of sentence and
       all that he was able to argue was that as the accused had undergone
       a portion of the sentence and, as the offence was committed in 1972,
       the High Court was not justified in enhancing the sentence. As is             B
       obvious, both these arguments are untenable and inconsequential be-
       cause of the concurrent findings of the trial court and the High Court
       that the accused emerged from the house of accused Bachan Singh
       as soon as Sarup Singh (deceased) reached the place of occurrence,
       shouted that he should be taught a lesson for getting liquor re--             c
       covered from them and beat him with their respective weapons. It
       has been found further that while accused Vir Singh caught hold of
        the hair of the deceased and Ravail Singh caught hold of his legs and
       felled him on the ground, Gurnam Singh, who was armed with a
        datar, dealt belows on his right knee while Chanan Singh gave a
        kirpan blow on his left hand, and then accused Gurnam Singh gave             D
        a blow on his right knee while Chanan Singh gave a kirpan blow on
        his left hand and he, Gurnam Singh and Bachan Singh dealt further
        blows on his ieft leg near the knee, as a result of which the left leg was
        completely severed from the body. It has also been concurrently
        found that the accused took away the chopped off leg of the deceased
        after wrapping it in his turban, and that he succumbed to the in-            E
        juries soon after. The facts and the circumstances which have thus
        been established by the evidence of Pal Singh P.W.4, anu Nishan
        Singh P.W.5, on which reliance has been placed by both the courts,
        justify the view taken by the High Court that the accused deserved tl!e
        sentence awarded to them by it.
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           Learned counsel for the accused tried to argue that the
       conviction of tl!e accused was not justified on the merits, and
       took us through the finding in regard to the motive for tl!e
       offence, t11e nature of the medical evidence, _the plea of self defence·
       taken by accused Bachan Singh and tl!e relationship of eye-witnesses
                                                                                     G
•      Pal Singh P.W.4 and Nishan Singh P.W.5 with the deceased. Apart
       from tl!e fact that there was no occasion for us to consider those
       arguments, we have no hesiration in saying that they are without merit.

/J>.       In the view we have taken, the petitipn for special leave is dis-
        missed.                                                                      H

        V.D.K.                                                 Petition dismissed.