Saturday, October 1, 2022

Supreme Court rules ex-parte enhancement of sentence in absence of counsel is against law

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In a recent judgment, the Supreme Court has held that ex-parte enhancement of a sentence is against the statutory mandate of the law under the Code of Criminal Procedure.

Justice Sanjiv Khanna and Justice Bela M. Trivedi noted since there is no clarity or lack of it on when the notice was actually served and whether the appellants were informed that the criminal revision will be taken up for final hearing.

The bench said provisions of Code of Criminal Procedure’s Section 401(1) and Section 386’s first proviso points to showing cause before enhancing the sentence in a criminal revision. Therefore, the increasing term of sentence ex-parte is against the law’s mandate.

The bench set aside the Madras High Court order under challenge which had enhanced the sentences imposed on the appellants under Sections 341, 294(b), 506(ii) and 447 of the Indian Penal Code even when no legal representations were made on their behalf in the absence of a counsel.

The bench noted further that if there was no counsel to make proper legal representation, the High Court ought to have appointed an Amicus Curiae as observed in the precedent case of Parveen v. State of Haryana by the Apex Court.

The bench passed an order of remand to the High Court to decide the revision petition afresh and in accordance with law while quashing the High Court’s impugned order.

The Apex Court cited the case of Govind Ramji Jadhav v. Maharashtra, where the High Court was directed to give the accused a reasonable opportunity of showing cause. “In the present matter it is evident that only the counsel for the petitioner and the State were heard and the other party was not given a reasonable opportunity,” the bench said.

The court noted that Section 401 of CrPC provides for High Court’s power of revision states that no order under this section of CrPC can be made to the prejudice of the accused or other person unless they had an opportunity of being heard.

In the present matter, only the petitioner and State were given the chance of making their representation before the court hence the bench did not opportunity to hear the appellant side of the matter in the absence of a counsel so as to make a legal representation on their behalf and the High Court was inaccurate in not appointing an Amicus Curiae for the same.

The bench also observed that there is lack of clarity on when the notice was actually served or whether the appellants were informed about it or not about the criminal revision being taken up for the final hearing.

The revision petition was taken up for final hearing after almost five years on October 24, 2018, where the order was passed mentioning that the notice had been served to appellants and their names had been printed in the cause list. However, there were no representations made on their behalf.

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