Holding

The Supreme Court may enhance the sentence under Article 142, and the right to plead for acquittal under Section 377(3) is limited to government appeals before the High Court.

Summary

Four accused were caught red‑handed with lethal explosives and convicted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, receiving five years' rigorous imprisonment. They appealed under Section 19 of TADA seeking sentence enhancement, contending that under Section 377(3) of the Criminal Procedure Code they could plead for acquittal and that the Supreme Court lacked power to increase the sentence without a specific government appeal. The Court held that the right under Section 377(3) is confined to government appeals before the High Court and does not extend to a Supreme Court appeal, and that the Court may enhance the sentence using its residual powers under Article 142 of the Constitution. Applying this power, the Court found the five‑year term inadequate and enhanced it to ten years, deeming the maximum life sentence unnecessary. The appeal was disposed of with the enhanced sentence.

Issues considered

The scope of the right under Section 377(3) of the Criminal Procedure Code for an accused to plead for acquittal in a Supreme Court appeal under TADA.
Whether the Supreme Court can enhance a sentence in a Section 19 TADA appeal without a specific government appeal, invoking Article 142 of the Constitution.
The extent of the Supreme Court's plenary powers under Article 136 in statutory appeals.
The appropriate quantum of punishment for an offence under Section 5 of TADA in the facts of the case.

Legislation cited

Code of Criminal Procedure, 1973s. 377(3)
Constitution of Indias. Article 136, s. Article 142
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 19, s. 5

Subjects

TADAsentence enhancementArticle 142Section 377(3) CrPCSupreme Court powerscriminal appealsentencingterrorism

Judgment

CHANDRAKANT PATIL A
v.
STATE THROUGH CBI

FEBRUARY 2, 1998

[M.K. MUKHERJEE AND K.T. THOMAS, JJ.] B

Criminal Law :

Criminal Procedure Code, 1973 : Section 377 (3).

Sentence-Appeal against-By Government-Acquittal-Right of
c
accused to plead/or-Supreme Court already confirmed conviction of accused
under S.5 TADA after considering in detail contentions raised by accused
and also dismissed review petition-Held :, Right to plead for acquittal
confined only to appeals presented by Government to High Court-Hence,
no further opportunity can be afforded to the accused in appeal before D
/·· Supreme Court under S.19 of TADA to plead for acquittal by reviewing the
findings already made.

Terrorist and Disruptive Acti".ities (Prevention) Act, 1987 :

Section 19--Sentence-Enhancement of-By Supreme Court in appeal- E
No appeal presented by Government specifically for enhancement-No revision
powers available to Supreme Court as are conferred on High Court and
Court of Sessions-Held : Even under these circumstances Supreme Court
has power under Art. I 42 r/w S.19 to enhance the sentence for doing complete
justice in the matter when in the circumslances of the case ii app~ars to be
too inadequate. F
Sec/ion 5--Sentence-Adequacy of-Accused caught red handed while
making nocturnal movements towards some targeted destination in densely
crowded city with highly lethal and quickly explosive articles-Minimum
sentence of 5 years 'RI imposed on accused-Held : Such minimum sentence
inadequate-Maximum sentence of file imprisonment also on higher side G
which should be reserved for gravest instances of offences-In the
circumstances of the case, 10 years' RI is adequate.

Constitution of India, 1950 :

Article 142--Supreme Court's power-Scope-Held : Not limited or H
447
448 SUPREME COURT REPORTS (1998) l S.C.R.

A restricted by any statutory enactment-However, it should be exercised
sparingly. ~

Article 136-Plenary power of Supreme Court-Scope of-Held : Not
restricted by appellale provisions enumerated under Cr.P.C. or any other
statute.
B
Sentencing :

Maximum sentence-Held : should be reserved for gravest instances of
offences likely to occur as a principle of common sense.

C The appellants-accused were caught red handed while making nocturnal
movements towards some targeted destination in the densely crowded city
with highly l~thal and quickly explosive articles. The appellants-accused
were convicted and sentenced to undergo rigorous imprisonment for five
years under Section 5 of the Terrorist and Disruptive Activities (Prevention)
D Act, 1987.

This Court confirmed the finding regarding the conviction under Section
5 of TADA after considering in detail the contentions raised by the accused
and also dismissed the review petition. While confirming the conviction this
Court felt that the sentence of rigorous imprisonment for 5 years awarded
E by the trial court to each of the accused was inadequate. Hence this Court
issued notice to the appellants-accused on the proposal to e~hance the
sentence.

On behalf of the accused it was contended that the accused had a right
to plead for his acquittal as envisaged under Section 377(3) of the Criminal
p Procedure Code, 1973; that this Court had no power to enhance the sentence
in the absence of an appeal by the Government presented specifically for that )...
purpose more so because this Court had no revisional power_s which the High (
Court and the Court of Sessions were conferred with by the Code; and that
the power under Article I 42 of the Constitution should be sparingly used
and that too in exceptional cases.
G
Disposing of the appeal, this Court
HELD : 1. The right envisaged in S~ction 377(3) of the Criminal
Procedure Code, 1973 shall be confined to appeals presented by Government
to the High Court against sentence on the ground of its inadequacy. There
H is no scope to afford a further opportunity in the appeal, at this stage, since
C. PATIL v. STATE 449

the finding of the trial court has already been considered elaborately by re- A
evaluating the entire evidence in the light of the elaborate arguments canvassed
on behalfof the parties. A repetition of the whole process over again is, apart
from waste of time of this Court, unnecessary and unwarranted by law.
•
'
1452-E-F]
2.1. Powers of the Supreme Court in appeals filed under Article 136 B
~- of the Constitution are not restricted by the appellate provisions enumerated
under the Code or any other statute. When exercising appellate jurisdiction,
the Supreme Court has power to pass any order. 1452-H]
Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., j1955] I
SCR 267, followed.
Arunachalm v. P.S.R. Sadhananthan, 11979] 2 SCC 297 and Delhi
c
Judicial Service Association v. State of Gujarat, !19911 4 SCC 406, relied
on.
2.2. However, the present appeals have not been filed under Article
136 of the Constitution, but under Section 19 of the Terrorist and Disruptive D
Activities (Prevention) Act, 1987. Hence while dealing with a statutory
appeal, plenary powers of the Supreme Court cannot be exercised. But even
otherwise this Court has wide and residual powers to deal with the situation.
like this, which are well enclosed in Article 142 uf the Constitution.
1453-BI

2.3. Power under Article 142 of the Constitution is entirely of different
E
level and is of a different quality, which cannot be limited or restricted by
provisions contained in statutory law. No-enactment made by the Central or
State Legislature can limit or restrict the power of this Court under Article
142, though while exercising it the court may have regard to statutory
provisions. 1453-E] F
' Delhi Judicial Service Association v. State of Gujarat, 11991] 4 SCC
405; Union Carbide Corporation '" Union of India, 11991 J 5 SCC 584;
Mohammed Anis v. Union of India, 11994] Supp. I SCC 145 and E.K.
Chandarsenan v. State of Kera la, I J 9951 2 SCC 99, relied on.
G
2.4. This Court's powers under Article 142 of the Constitution are
vastly broad based. That power in its exercise is circumscribed only by two
conditions, first is that it can be exercised only when this Court CJtherwise
exercises its jurisdiction and the other is that the order which this Court
passes must be necessary for doing complete justice in the case or matter
pending before it. The first condition is satisfied here as the appellate H
450 SUPREME COURT REPORTS [1998] I S.C.R.

A jurisdiction of this Court is exercisable by virtue of Section 19 of TADA:
[453-C-D] 4
3.1. Although powers under Article 142 are not to be exercised
frequen,tly but only sparingly yet the occurrenc~ described in this case is
not the usual type of crimes reaching this Court. When all the four accused
B were caught red handed while making nocturnal movements towards some
targeted. destination, in the densely crowded city with highly lethal and
quickly explosive article, it is a matter of reasonable imagination that, had
they not been timely intercepted by the alert and vigilant police force, the
consequences would have been disastrous and calamitous. Therefore, the
sentence of imprisonment of five years for the offence under Section 5 of the
C TADA in the circumstances of this case is too inadequate and it warrants
enhancement. [454-E-F)

3.2. However, the maximum sentence of life imprisonment prescribed
under Section 5 of TADA need not be awarded in this case since on a
D consideration of all aspects of the case the said upper limit is on the higher
side. The maximum sentence should be reserved for the gravest instances
of offence likely to occur as a principle of commonsense. Nevertheless, after
bestowing serious consideration in the matter it must be held that
imprisonment for a period of at least 10 years would be necessary to meet
the ends of justice looking at the manner in which the offence was perpetrated
E by the four accused persons. [454-G-H; 455-A-C)

Christopher J. Emmins MA. : A Practical Approach to Sentencing,
referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
F 438 of 1997 Etc.
From the Judgment and Order dated 17.3.97 of the Designated Court,
at Karkardooma in Delhi in R.C. No. 11-15of1993.

Ram Jethmalani, K.T.S. Tulsi, V.S. Kotwal, S.R. Chitnis, P.N. Gupta,
G Ms. Lata Krishnamurthy, Anil Kumar Gupta, J. Butcher and Vikas Pawha
for the Appellants.

V.R. Reddy, Additional Solicitor General, A. Mariarputham, T.C. Shanna
and P. Parmeswaran for the Respondent.

The Judgment of the Court was delivered by
H
C. PATIL v. STATE [THOMAS, J.] 451

THOMAS, J. After concurring with the finding that first accused A
4-- Subhash Singh Thakur, second accused Jayendra. Thakur @ Bhai Thakur;
third accused Shyam Kishote Garikapati and fourth accused Chandrakant Patil
are guilty of the offence under Section 5 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 for short 'the TADA' and confirming the
conviction of that offence we felt that the sentence of rigorous imprisonment
....- for 5 years awarded by the trial court to each of them is inadequate. Hence
B
we issued notice to them on· the proposal to enhance the sentence. The said
accused, in reply to the notice, filed detailed written submission. We heard
the arguments addressed by the senior counsel on behalf of those accused
and also Shri V R. Reddy, Addi. Solicitor General who argued for the Central
Bureau of Investigation. c
We may state at the outset that we would not, at this stage, review the
finding regarding the conviction of the offence under Section 5 of TADA for
the obvious reason that we c0nfirmed the finding after considering in detail
the contentions raised by the accused and the elaborate arguments addressed
.._,,
_
by the learned counsel. Further, we have already dismissed the petitions filed
for review of the findings arrived at by us adverse to those accused. Shri Ram
D

Jethmalani, learned senior counsel made an endeavour to convince us that the
accused have a right for re-canvassing the aforesaid finding on. a parity of
the principle envisaged in Section 377 (3) of the Code of Criminal Procedure,
1973 (which may be referred to hereinafter as ' the present Code'). According
to the sub-section "when an appeal has been filed against the sentence on
E
the ground of its inadequacy, the High Court shall not enhance the sentence
except after giving to the accuied a reasonable opportunity of showing cause
against such enhancement and while showing cause, the accused may plead
for his acquittal or for the reduction of the sentence."
F
"' '.. Under the Code of Criminal Procedure, 1898 (the old Code) High Court
had the power to enhance a sentence even on an appeal filed by the accused
against his conviction. Section 423 of the old Code, while circumscribing the
powers of the appellate court, made an addition through sub-section (1-A)
like this:
G
"(1-A) Where an appeal from a conviction lies to the High Court, it
.~ -P> may enhance the. sentence, notwithstanding anything inconsistent
therewith contained in clause (b) of Sub-section (1 ). "

As against the said provision, the corresponding section in the present Code
contains restrictions imposed on the appellate court for enhancing the sentence H
452 SUPREME COURT REPORTS [1998] I S.C.R.

A on an appeal filed from a conviction. The said restriction is incorporated in
Section 3 86 (b) of the present Code that in an appeal from conviction, the
appellate court may reverse the finding and sentence and acquit or discharge
the accused or alter the finding and maintain the sentence or with or without
altering the finding alter the nature or the extent of the sentence "but not so
B as to enhance the same." While incorporating the said restriction the present
Code conferred a new right on the State or Central Government by Section
377 to present an appeal through the public Prosecutor on the ground of
inadequacy of Sentence. Such appellate powers of the High Court are subject
to the rider that the accused should be given a reasonable opportunity of
showing cause against such enhancement and while showing such cause the
C accused has the right to plead for acquittal or for reduction of sentence.

On the strength of the principle so· adumbrated in the present Code
learned counsel contended first that this Court has no power to enhance the
sentenc~ as the present appeal has been filed from a conviction, and second,
that the accused would get a right when there is a proposal to enhance the
D sentence, to plead for his acquittal by reviewing the finding already mack.

We are unable to agree with the learned counsel that the accused has
a further right in this case to canvass for reviewing the finding arrived at by
this Court over again. The right envisaged in Section 377(3) of the Present
Code shall be confined to appeals presented by Government to the High
E Court against sentence on the ground of its inadequacy. There is no scope
to afford a further opportunity in the appeal, at this stage, since the finding
of the trial court has already been considered elaborately by re-evaluating the
entire evidence in the light of the elaborate arguments canvassed on behalf
of the parties. A repetition of the whole process over again is, apart from
F waste of time of this Court, unnecessary and unwarranted by law.
)..
Shri Ram Jethmalani, learned senior counsel next contended that the f

Supreme Court has no power to enhance sentence in the absence of an appeal
by the Government presented specifically for that purpose more so because
the Supreme Court has no revisional powers which the High court and Court
G of Sessions are conferred with by the present Code.

Powers of the Supreme Court in appeals filed under article 136 of the
Constitution are not restricted by the appellate provisions enumerated under
the Code of Criminal Procedure or any other statute. When exercising appellate
jurisdiction, the Supreme Court has power to pass any order. The aforesaid
H legal position has been recognized by the Constitution Bench of this Court
C. PATIL v. STATE [THOMAS, J.) 453

in Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors., [1995] 1 SCR A
267 and later followed in a series of decisions. Vide Arunachalam v. PSR
Sadhanantham & anr., [ 1979] 2 SCC 297, Delhi Judicial Service Association
v. State of Gujarat & Ors., [1991] 4 SCC 406.

The present appeals have not been filed under Article 136 of the
Constitution, but under Section 19 6f TADA. Hence it was contended that B
while dealing with a statutory appeal, plenary powers of the Supreme Court
cannot be exercised. Accepting the said contention we may point out that
even otherwise this Court has wide and residual powers to deal with the
situation like this, which are well enclosed in Article 142 of the Constitution.

It is now well high settled that Supreme Court's powers under Article c
142 of the Constitution are vastly broad based. That power in its exercise is
circumscribed only by two conditiOns, first is that it can be exercised only
.when Supreme court other wise exercises its jurisdiction and the other is that
the order which Supreme Court passes inust be necessary for doing complete
justice in the cause or matter pending before it. The first condition is satiSfied D
here as the appellate jurisdiction of the Supreme Court is exercisable by virtue
of Section 19 of TADA.

In Delhi Judicial Service Association v. State of Gujarat (supra) as also
in Union Carbide Corporation v. Union ofIndia, [1991] 5 SCC 584, this Court
made the position clear that power under Article 142 of the Constitution is E
.entirely of different level and is of a different quality which cannot be limited
or restricted by provisions contained in statutory law. No enactment made by
the Central or State legislature can limit or restrict the power of this Court
under Article 142, though while exercising it the court may have regard to
statutory provisions. In Mohammed Anis v. Union of India, [1994] Suppl. 1
SCC 145, Ahmadi J. (as the learned Chief Justice then was) by following the F
dictum in the above mentioned decisions has observed in paragraph 6, as
follows:

'This power has been conferred on the Apex Court only and the
exercise of that power is not dependent or conditioned by any statutory
provision. The Constitutional plenitude of the powers of the Apex G
Court is to ensure due and proper administration of justice and is
intended to be co-extensive in each case with the needs of justice of
a given case and to meeting any exigency. Very wide powers have
been conferred on this Court for due and proper administration of
justice and whenever the court sees that the demand of justice warrants H
454 SUPREME COURT REPORTS [1998] l S.C.R

A exercise of such powers, it will reach out to ensure that justice is done
by resorting to this extraordinary power conferred to meet precisely .
such a situation."

In E.K.·Chandrasenan v. State of Kera/a, [1995] 2 SCC 99, this Court
has traced its power in Article 142 for the purpose of enhancing the sentence
B awarded to the accused who filed the appeal challenging the conviction -.:'
passed by the High Court. The following observations in the said decision
are apposite:

"What is contained ;n Article 142 would in any case provide sufficient
power to this Court to pass an order like the one at hand, if this Court
c were to be of the view that the same is necessary for doing complete
justice."

Shri Ram Jethmalani, learned senior counsel, cautioned us by reminding
that recourse to Article 14 2 should not be made far too often since those
D powers are specifically reserved for using in exceptional exigencies. According "'
to him the instances when resort was made to Article 142 by the Court'in the "
past were far and few between and that too in cases of very rare eventualities.

We are aware that powers under Article 142 are not to be exercised
frequently but only sparingly. The occurrence described in this case is not
E the usual type of crimes reaching this Court. When all the four accused were
caught red handed while making nocturnal mo\'ements towards some targeted
destination in the densely crowded city with highly lethal and quickly explosive
articles, it is a matter of reasonable imagination that, had they not been timely
intercepted by the alert and vigilant police force, the consequences would
have been disastrous and calamitous. We have no manner of doubt that
F sentence of imprisonment of five years for the offence under Section 5 of the >-
TADA in the circumstances of this case is too inadequate and it warrants
enhancement.

The next question to be considered is, what should be the extent of the
G sentence. Section 5 of TADA prescribes punishment of "imprisonment for a
term which shall not be less than five years, but which may extend to
imprisonment for life" besides fine. When we found that the minimum sentence
prescribed is too inadequate, we have to consider whether the maximum
prescribed is attracted.

H Christopher J. Emmins MA in his 'A Practical Approach to Sentencing'.
C. PATIL v. STATE [~HOMAS, J.] 455
has suggested that the maximum sentence should be reserved for the gravest A
insta~ces of offence likely to occur as a principle of commonsense (vide p.
110). We do not think that the maximum sentence prescribed in the section
need be awarde)I in this case since on a consideration of all aspects of the
case we feel that the said upper limit is on the higher side. Nevertheless, after
bestowing our serious consideration in the matter we are of the definite B
opinion that imprisonment for period of at least 10 years would be necessary
to meet the ends of justice looking at the manner in which the offence was
perpetrated by the four accused persons.

In the result, we enhance the sentence of imprisonment from 5 years as
awarded by the Designated Court, to 10 years for all the for accused A-1 C
Subhash Singh Thakur, A-2 Jayendra Thakur @ Bhai Thakur, A-3 Shyam
Kishore Garikapati and A-4 Chandrakant Patil. Ordered accordingly.

All the appeals would stand thus disposed of.

v.s.s. Appeals disposed of. D
•