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TMI Blog2005 (1) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 5 years for the offence under Section 302 read with Section 149 of IPC. Challenging their conviction, accused Nos. 1 and 3 to 5 have filed Cr.A. No. 829/ 2001 whereas, accused No. 2 has filed Crl.A. No. 975/2001 before this Court. These appeals are pending for consideration. Under Section 377 of Cr.P.C., the State had also filed Crl.A. No. 1181/2001 against the inadequacy of the sentence as against accused Nos. 1 and 3 to 5 since they were sentenced to undergo R.I for 5 years only as against the minimum punishment of imprisonment for life for the offence punishable under Section 302 of IPC. When said State appeal was taken for consideration, filing of and pendency of two criminal appeals filed by the accused challenging their conviction was brought to the notice of the Division Bench. Still, without considering the case of the accused regarding their acquittal, the Division Bench allowed the State appeal (Crl.A. No. 1181/2001) after hearing the State and the accused and ordered as under: 4. The State Appeal is allowed and the sentence passed by the Trial Court is set aside and the accused is sentenced to imprisonment for life. 5. This will not preclude the appeal being he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the same appellant has not been considered by it, that Court may, notwithstanding anything contained in Section 393, if satisfied that it is necessary in the interests of justice so to do, hear and dispose of such appeal in accordance with law . As per said provision, Court can hear and dispose of an appeal filed by accused under Section 382, even if jail appeal filed by accused under Section 383 is dismissed summarily. But, Crl.A. No. 1181/2001 was not an appeal filed under Section 383 of Cr.P.C. It was an appeal filed by the State. Further, it was disposed of under Section 377 of Cr.P.C. and not dismissed summarily under Section 384(1) of Cr.P.C., So, Section 384(4) has no application. So also, the decision of Madhya Pradesh High Court in the case of Musamat Budwara Bai (supra) dealing with the situation, where jail appeal filed by the accused was dismissed summarily, does not come to the aid of the accused. 5. Now let us turn to Section 393 of Cr.P.C., on which the learned Additional S.P.P. relies. It reads as follows: 393. Finality of judgments and orders on appeal-Judgments and orders passed by an Appellate Court upon an appeal shall be final, expect in the cases provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State, the sentence imposed on the accused is enhanced under Section 377 of Cr.P.C. So, it is also of no help to the prosecution. 7. It is not a case requiring any amendment or consequential or incidental order. So, clause, (e) of Section 386, under which an appellate Court may make any amendment or any consequential or incidental order that may be just or proper also does not come to the aid of the learned Addl.SPP. Thus, neither Section 384 nor Section 393 nor Section 386 of Cr.P.C. applies to the case on hand. 8. Now let us see Section 377(3) of Cr.P.C. since, admittedly, Crl.A. No. 1181/2001 filed by the State and disposed of already was under Section 377 of Cr.P.C. Section 377(3) of Cr.P.C. is as under: 377(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence expect after giving to the accused 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 . In view of the said provision, in an appeal filed by the State, accused is required to be heard and given an opportunity to plead for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertinent to note that, while allowing Crl.A. No. 1181/2001 filed by the State and enhancing the sentence to imprisonment for life, the Division Bench has observed that its order (in the State appeal) will not preclude the appeal (filed by accused) being heard on merits. This indicates that the Division Bench did not hear the accused pleading their acquittal in the appeals filed by them and as such, they cannot be deprived of their valuable right of hearing regarding their acquittal. In the circumstances and fact situation of the present case, it could be clarified that the appeals filed by the accused for their acquittal could be heard and decided. 11. At this juncture, it would be useful to note that in the case of Habu (supra), the Full Bench of Rajasthan High Court has observed thus: 42.... A perusal of the history of the cases shows that in all democratic societies right of hearing has been given utmost importance, rather laws have been enacted from time to time for providing legal aid to the persons who are unable to afford the lawyers. Holds Werth's history on English Law vol.9 page 226 deals with history of struggle which took place in England before a litigant's rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice and to prevent the abuse of the process of the Court. It is a well known dictum that justice has not only to be done but it should also appear to have been done and, therefore, whenever a litigant comes before the Court it is essential that he must go having full faith in his mind that the Court has done justice with the cases. It is true that all cannot go satisfied with the decision of the Court but at least all must have the satisfaction that they have been heard by the Court....... The said observations make it clear that an accused cannot be deprived of his important and fundamental right of hearing and support our view that the accused cannot be deprived of their right of hearing in their appeals filed challenging their conviction, though they were represented and given an opportunity of being heard in the appeal filed by the State ie., in Crl. A. No. 1181/2001 while enhancing their sentence to undergo imprisonment for life for the offence under Section 302 of I.P.C. 12. So, our answer to the first part of the question referred to the Bench is: Where an appeal against conviction is filed by accused and also an appeal against enhancement is filed by the State, the B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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