Gujarat High Court
Suo Motu vs The State Of Gujarat on 25 June, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.RA/132/2005 JUDGMENT DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 132 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
Yes
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SUO MOTU
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
SUO MOTU for the Applicant(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 2
MR L B DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 25/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This suo motu criminal revision being registered on the
basis of order passed by this Court dated 28.02.2005.
The respondent-accused was convicted and sentenced
for the offence punishable under Section 307 of the
Indian Penal Code. He was tried by Himmatnagar
Sessions Court and after conclusion of the trial, vide
judgment and order dated 28.01.2005, the respondent-
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accused found guilty. He has challenged the judgment
of conviction and sentence by filing criminal appeal
being Criminal Appeal No.361 of 2005. While admitting
the appeal, the Coordinate Bench of this Court on the
issue of sentence, suo motu taken cognizance and
issued notice to the accused as to why the sentence
would not be enhanced.
2. Mr. R.N. Shah, learned counsel for Mr. Hiren Modi,
learned counsel for the respondent-accused would
submits that, this revision application is not
maintainable as while exercising its appellate
jurisdiction, the High Court cannot act as a revisional
court particularly when no appeal or revision has been
filed either by the State, victim or complainant for
seeking enhancement of sentence against the accused.
In support of the submission, reliance has been placed
on the recent judgment of the Supreme Court delivered
in the case of Nagarajan vs. State of Tamil Nadu
(Criminal Appeal No.2892-2893 of 2025).
3. On the other hand, the State has vehemently opposed
the submission and submitted that, the case of the
Supreme Court on the issue of interpretation of law is
not relevant in the facts of the present case and
therefore, the plea about non-maintainability of the suo
motu revision can be adjudicated on merits.
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4. Having regard to the facts and circumstances of the
present case, the issue arise for our consideration so as
to whether while exercising appellate jurisdiction, the
High Court can exercise suo motu revision either to
enhance the sentence or to convict the appellant on
any other charge.
5. In our opinion, this suo motu revision is being disposed
of by following the judgment of the Supreme Court
delivered in case of Nagarajan (supra) and our answer
is affirmative to the issue framed about.
6. In the present case, while challenging the conviction,
the respondent-accused filed a criminal appeal. The
accused has been convicted for the offence punishable
under Section 307 of the Indian Penal Code and is
directed to suffer 3 years imprisonment with fine. At
the time of admission of the appeal, the Division Bench
of this Court found that the sentence imposed seems to
be inadequate and issued notice to the respondent-
accused exercising jurisdiction under Section 401 of
the Cr.P.C. and accordingly, suo motu revision is
registered. It is no doubt true that the State has not
filed enhancement appeal under Section 377 of the
Cr.P.C., nor victim has filed any appeal/revision on
inadequacy of the sentence. The Supreme Court on the
aforesaid case, has taken the reference of judgment
rendered in case of Sachin vs. State of Maharashtra
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(Criminal Appeal No.2073-2075 of 2025 dated
21.04.2025). The relevant paragraphs of the said
judgment reads as under:
"23. The question for consideration in this case is, whether, in an
appeal against conviction, the appellate court could have directed
enhancement of the sentence in an appeal filed by the accused.
Under clause (b) of Section 386 CrPC, firstly, the appellate court can
no doubt alter the findings and sentence and acquit or discharge
the accused or order him to be retried by a Court of competent
jurisdiction subordinate to such appellate court or committed for
trial. Secondly, the appellate court can also alter the findings but
maintain the sentence. Thirdly, the appellate court can, in an appeal
from a conviction, with or without altering the finding, alter the
nature or the extent, or the nature and extent, of the sentence but
not so as to enhance the same. A plain reading of this would imply
that in an appeal against conviction which is obviously filed by the
accused, the challenge could be two-fold: firstly, it could be against
the conviction itself in which case there is a challenge to the
sentence also; and secondly, the challenge could be only to the
sentence while accepting the conviction. In other words, the
challenge would also be only for reduction of the sentence. The
question is, whether, in an appeal challenging the conviction and
sentence, the appellate court could, while affirming the conviction
enhance the sentence imposed by the trial court by directing that
the same had to be with reference to other statutory provisions.
There is no doubt that the appellate court while maintaining the
conviction can reduce the sentence and grant partial relief to an
accused but in an appeal filed by the appellant-accused, can the
appellate court not only a(rm the conviction but go a step further
and seek to enhance the sentence than what has been imposed by
the Trial Court. It cannot be lost sight of that in an appeal filed by
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the accused, the appellant-accused is, at best, seeking a reversal of
the conviction as well as setting aside of the sentence and the least
that the appellant-accused can expect is even while the conviction is
affirmed, the sentence could be maintained, if not reduced.
24. Thus, in an appeal filed by the appellant-accused against the
judgment of the conviction and sentence, can the accused be left
worse-off while the conviction is affirmed by the appellate court
exercising appellate jurisdiction by enhancing the sentence? In such
an event, the appellant-accused would be better off, if he either
withdraws his appeal or, not to file an appeal at all. But an appeal is
not only a valuable statutory right but also a constitutional right in
criminal cases."
7. In the present case, suo motu revision being registered
while exercising revisional power of the High Court.
Section 401 of Cr.P.C. which deals with the revisional
power of the High Court and same is extracted as
under:
"401. High Court's powers of revision.--(1) In the case of any
proceeding the record of which has been called for by itself or
which otherwise comes to its knowledge, the High Court may, in its
discretion, exercise any of the powers conferred on a Court of
Appeal by sections 386, 389, 390 and 391 or on a Court of Session
by section 307, and, when the Judges composing the Court of
Revision are equally divided in opinion, the case shall be disposed of
in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the
accused or other person unless he has had an opportunity of being
heard either personally or by pleader in his own defence.
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(3) Nothing in this section shall be deemed to authorise a High
Court to convert a finding of acquittal into one conviction.
(4) Where under this Code an appeal lies and no appeal is brought,
no proceeding by way of revision shall be entertained at the
instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for
revision has been made to the High Court by any person and the
High Court is satisfied that such application was made under the
erroneous belief that no appeal lies thereto and that it is necessary
in the interests of Justice so to do, the High Court may treat the
application for revision as a petition of appeal and deal with the
same accordingly."
8. While referring sub-section 4 of Section 401 of the
Cr.P.C., the Supreme Court in the case of Nagarajan
(supra), held that, sub-section 4 of Section 401 states
that, where under the Cr.P.C. an appeal could have
been filed and has not been filed, then, no proceeding
by way of revision could be entertained at the instance
of party who could have appealed. The Supreme Court
while interpreting the sub-section 4 of Section 401
further held that if a State, complainant or the victim
who have right to file an appeal, do not opt to do so,
then the High Court cannot entertain a revision at its
behest. The Supreme Court further held and observed
that, in an appeal filed by the accused seeking setting
aside the conviction of sentence, the High Court cannot
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exercise its revisional powers and while affirming the
conviction, direct for enhancement of sentence, when
actually appeal could have been filed by the State,
complainant or the victim and has not been filed. The
Supreme Court has laid down further that the power to
enhance the sentence can be exercised by the
Appellate Court only in an appeal filed by the State,
victim or complainant.
9. In light of the law laid down by the Supreme Court in
the case of Nagarajan (supra), when the conviction
appeal is filed assailing the judgment of conviction, the
High Court cannot exercise its revisional jurisdiction
under Section 401 of the Cr.P.C. while exercising its
appellate jurisdiction in an appeal.
10. For the reasons recorded, the suo motu revision is
not maintainable in view of the ratio laid down by the
Supreme Court in the case of Nagarjan and
accordingly, stands disposed of.
Sd/-
(ILESH J. VORA,J)
Sd/-
(P. M. RAVAL, J)
TAUSIF SAIYED
